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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-11-30 Daily Xml
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Matter of Privilege

Attorney-General

Ms MICHAELS (Enfield) (11:02): I rise to move the motion that appears as Notice of Motion No. 1 on the Notice Paper today in an amended form, with three changes. For the benefit of the house, I wish to delete paragraphs (g) and (j) of the motion as it appears on the Notice Paper and amend paragraph (e) to refer to six days' suspension, being two days for each finding of misleading the house. The balance remains as printed on the Notice Paper.

I also wish to move that the debate be confined to one hour, 30 minutes on each side of the chamber.

The SPEAKER: Member for Enfield, I am informed that it is only a minister who can move to allot time to a debate.

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Deputy Premier, Minister for Energy and Mining) (11:03): I move:

That debate on this motion be confined to one hour in total, 30 minutes each side.

Motion carried.

Ms MICHAELS (Enfield) (11:03): I move:

1. That this house agrees with the recommendations in the report presented to the house of the Select Committee on the Conduct of the Hon Vickie Chapman MP regarding the Kangaroo Island Port Application, and that the house—

(a) find the Attorney-General guilty of contempt for deliberately misleading the parliament, following its factual findings that statement 1 (relating to property and pecuniary interests) was false and was known to be false by the Attorney-General at the time those statements were made and was intended to mislead the house;

(b) find the Attorney-General guilty of contempt for deliberately misleading parliament following its factual findings that statement 2 (relating to proposed transport routes) was false and was known to be false by the Attorney-General at the time those statements were made and was intended to mislead the house;

(c) find the Attorney-General guilty of contempt for deliberately misleading parliament, following its factual findings that statement 4 (relating to a government report on alternative wharf sites) was false and was known to be false by the Attorney-General at the time those statements were made and were intended to mislead the house;

(d) consider the following penalties for each finding of contempt:

(i) ordering the Attorney-General to be brought before the bar to be admonished by the Speaker;

(ii) insisting the Attorney-General issue a public and unreserved apology for her conduct; or

(iii) suspending the Attorney-General from the service of the house for a period of no more than 11 days.

(e) resolves to suspend the Attorney-General from the service of the house for six days, being a punishment of two days' suspension for each finding of misleading the house;

(f) find the Attorney-General acted in a position of conflict of interest, both actual and perceived, based on the committee's factual findings, and is guilty of contempt;

(g) find that the Attorney-General breached the Ministerial Code of Conduct, based on the committee's factual findings; and

(h) consider the breach of the code of conduct involved conduct of sufficient severity to amount to contempt.

I know that members in this place understand the seriousness of this matter and know the importance of upholding the privileges enjoyed by this parliament and the importance of protecting the parliament from this sort of contempt.

It is bitterly disappointing that the Attorney continues to be 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 is to consider the factual findings of the select committee report and to make decisions based on those findings of fact based on the evidence, and I ask members to bear that in mind.

As to paragraph (a) of the motion, which refers to statement 1 of the committee's report, the committee considered that there was sufficient evidence to find that the Attorney misled parliament when she said:

I have no pecuniary interest in the affected property or the business of KIPT, nor any property or industry associated with or potentially impacted by the proposed wharf…

And a statement to the effect that neither the minister nor any family member or related entity owned property near or impacted by KIPT forests or the proposed port.

Dr Gray, as counsel assisting, advised that it was open to the committee to make the following factual findings, and the committee did in fact do so: that statement 1 was false in that the Attorney owned property known as Gum Valley; that the Attorney derived income from Gum Valley, as evidenced by the Attorney's own evidence; that a plantation forest is located on the opposite side of Western River Road to Gum Valley; and that KIPT had a contract over that plantation.

Timber salvage operations would cause an increase in truck movements near Gum Valley, as well as the operation of harvesting machinery for 18 months to two years during a salvage operation. Beyond the salvage operations there would be long-term forestry operations, including on land across the road from the Attorney's property, had the port been approved.

A port at Smith Bay would impact the use of all land in the west of Kangaroo Island where plantation forests are currently located. The impact of the port on the tourism industry on Kangaroo Island was one of the matters considered in the environmental impact statement and the two assessment reports, and was summarised in the letter from the State Planning Commission, dated 23 July 2021, as:

The broader impact on the Island's economy, particularly in relation to the tourism industry and its 'clean and green' image, are less clear. The Commission acknowledges the impact on the Island's character and tourism appeal is difficult to quantify. A range of mitigation measures have been proposed to reduce impacts; however, there will be unavoidable impacts from the harvesting phase of timber production.

It is clear from the evidence admitted to the committee that the Attorney did have a pecuniary interest in the tourism industry which would be impacted by the proposed wharf. Furthermore, the Attorney's Gum Valley property would be impacted by the proposed port due to the increased truck movements and the operation of harvesting machinery and the likely use of the land on which forests are located, and the associated impacts of the lack of a substantial timber industry on Kangaroo Island, due to the lack of a port through which timber may be shipped.

Finally, it is not relevant at law whether the Attorney cared about the trucks or not; it is an objective assessment that the legal principles require. The committee made factual findings such that the house should find that the Attorney intentionally misled the parliament with this statement.

I now turn to paragraph (b) of the motion, which refers to statement 2 as set out in the committee's report. The committee considered there was sufficient evidence to find the Attorney had misled parliament when she said:

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

Dr Gray advised that it was open to the committee to make the following factual findings, and the committee has done so. These include that as at 22 December 2020, when KIPT submitted its second addendum containing the proposed truck route to the proposed port, the route approached Smith Bay along North Coast Road from the east.

This route would have taken trucks directly past Mayor Pengilly's residential property on North Coast Road. The truck routes were identified in not only KIPT's second addendum but also the 2021 assessment report. Mayor Pengilly is recorded in the minutes of the meeting of KI Council on 19 January 2021 as declaring a 'perceived conflict of interest…as a resident adjacent to the proposed route'.

The evidence provided by Mr John Sergeant, Mr Keith Lamb, Ms Shauna Black and Mr Lockett, all formerly KIPT employees and directors; Ms Helen Dyer, the former chair of the State Planning Commission; and Mr Tony Braxton-Smith, the Chief Executive of the Department for Infrastructure and Transport, all indicated that the route of the trucks would pass directly past the mayor's home.

The Attorney stated to this house that she had had a good read of the assessment report, suggesting that she clearly understood the contents of the assessment report. Despite the overwhelming evidence to the contrary, the Attorney retained throughout her evidence that the proposed truck route did not pass Mr Pengilly's house. The Attorney continued to insist that trucks would not travel by the mayor's property in the face of overwhelming objective evidence to the contrary. The committee made factual findings such that the house should find that the Attorney misled the parliament with this statement.

In relation to paragraph (c) of the motion, which refers to statement 4 of the committee's report, the final statement refers to a quote from the Attorney in this place where 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 'to look at where an ideal port would be to get timber off Kangaroo Island'. Dr Gray advised that it was open to the committee to make the following factual findings and the committee has done so.

Mr Braxton-Smith confirmed the Wavelength report looked at where an ideal port would be to get timber off Kangaroo Island. This was also supported by the evidence of Mr Robert Kleeman of Planning and Land Use Services. The Wavelength report commissioned by DIT reviewed 20 potential locations for a port, short-listing nine locations. The Wavelength report concluded that there was no single stand-out site on the island but that Smith Bay ranked better than every other potential location and was an appropriate location for the port. It was ranked in that report as number one on the list of potential locations to be considered.

The Wavelength report was referred to in the 2020 assessment report in a minute dated 25 September 2020 provided to the Attorney, in the 2021 assessment report and in another minute provided to the Attorney dated 26 July 2021. On its face, the Wavelength report makes clear the ranking of Smith Bay against other potential port sites and that it was the best ranked site. Given the clarity of the Wavelength report and the number of documents that refer to it, the weight of evidence suggests that the Attorney knew that statement 4 was in fact false at the time she made it and intended to mislead the house. The committee made factual findings such that the house should find that the Attorney misled the parliament with this statement.

Based on the findings of the select committee, the committee offered the following options for the house to consider in regard to penalties: firstly, ordering the Attorney-General to be brought before the bar to be admonished by you, Mr Speaker; insisting that the Attorney-General issue a public and unreserved apology for her conduct; or suspending the Attorney-General from the service of the house for a period of not more than 11 days. The committee, however, recommends to the house, as set out in paragraph (d) and amended by my amendment earlier, that the house suspend the Attorney-General from the service of the house for six days, based on a punishment of two days' suspension for each finding of misleading the house.

Paragraph (f) considers the serious nature of a conflict of interest in public decision-making by a minister, and the committee recommends that the house find that the Attorney acted in a position of conflict of interest, both actual and perceived, based on the committee's factual findings and is therefore guilty of contempt.

Whilst giving his evidence to the committee, Mr Tony Braxton-Smith said that you should not teach your grandmother to suck eggs. While I commend Mr Tony Braxton-Smith's high regard for the Attorney, it is clear from the evidence that the Attorney has misunderstood the basic legal principles of what constitutes a conflict of interest or has disregarded them. I have to say I am bitterly disappointed that the chief law officer does not appreciate what a conflict of interest is and the consequences of acting with an undisclosed conflict of interest.

For the Attorney's benefit, I will provide a very brief summary. A conflict arises if a minister has a personal interest in the subject of which she is asked to determine. A personal interest is anything that can impact a minister or a person with which the minister has a relationship or association with. A relevant example of this is owning property in an area that will be impacted, either positively or negatively, by a decision that is made. It is clear from the evidence and the findings of the select committee that the Attorney had a personal interest. Once an interest is established it needs to be determined if that interest is actual, potential or perceived conflict.

In relation to perceived conflict, there have been numerous cases where judges have recused themselves from hearing matters due to a perceived conflict of interest. Their judgements on these conflicts are long and detailed and the case law is clear. A mere perception of conflict is enough to taint a legal ruling. Judges choose to have these matters heard by other judicial officers to ensure a perception of a conflict does not cause harm to the public's faith in our justice system.

Essentially the same expectations apply to members of the executive and other public officials to ensure that the public can maintain their faith in our government. When it comes to making decisions that have significant economic, environmental and financial consequences for our state, we—that is, all South Australians—expect the utmost from our elected officials. A perceived conflict arises where it would appear to a reasonable person that the Attorney's personal interest could influence her decision in an improper way.

Here we need to apply the reasonable person test. Would it appear to a reasonable, fair-minded person that the Attorney had a conflict of interest in these circumstances:

where the Attorney had a long history with the island;

where her family had been there for generations;

where her family had been farmers for generations;

where a small group of farmers on Kangaroo Island with whom she was aligned have been against the forestry industry on the island for decades;

the Attorney and her family have significant landholdings on the island, including, critically, land directly across the road from a forest contracted to KIPT;

the Attorney is a close family friend of the former member for Finniss and the current Mayor of Kangaroo Island, Mr Michael Pengilly; and

Mr Pengilly has been a vocal opponent of the port proposal at Smith Bay. His property overlooks Smith Bay and the freight route to the proposed port travels directly past his home?

On the face of it, the committee was asked to consider whether a reasonable, fair-minded person would perceive that the Attorney had a conflict of interest in these circumstances. The mere perception of a conflict of interest is enough reason for the Attorney to have delegated this decision to another minister and we have all read significant commentary on this issue in recent times in the media, including from Mr Tom Richardson, who summed it up this way in an article that appeared in InDaily on Friday 12 November:

It is textbook.

It is, I’d suggest, about as clear a case of perceived conflict of interest as you are ever likely to encounter in public life.

I have no reason to doubt that Mr Richardson is a reasonable person. This is not some situation where you need a highly trained legal mind to consider the facts and reach a conclusion as to whether this is a perceived conflict of interest.

When you have ministerial advisers, chiefs of staff, the Crown Solicitor's Office and departmental heads all asking themselves whether the Attorney had a conflict of interest, I for one would and the committee in fact found that there is in fact a perception that there was a conflict of interest. And as I said earlier, a perception of conflict of interest is the type of conflict which requires the minister to have delegated her decision.

The perception of conflict was so strong within the Attorney's own office that a delegation was drafted to the Minister for Human Services. It is clear on the evidence received by the committee that the Attorney's staff and other public servants involved saw a conflict. They are reasonable people. That is a perceived conflict of interest.

Dr Gray, when discussing the nature of the Attorney's relationship with Mayor Pengilly, acknowledged that it did not reach the standard set for an actual conflict of interest. However, Dr Gray noted that the friendship between the Attorney and the mayor did contribute to a perception of a conflict of interest. Dr Gray considered:

the close friendship between the Attorney and Mayor Pengilly;

the meeting between KIPT executives, Mayor Pengilly and the Attorney in 2017 when, as we heard in evidence from Mr Sergeant of KIPT, the Attorney made it clear she did not believe that Smith Bay could be identified as a suitable let alone optimal site. Instead, she strongly suggested that KIPT look closely at Cape Dutton further west, using her extensive local knowledge to suggest the optimal haulage route to that location, despite Cape Dutton being a marine park;

the truck routes on North Coast Road passed Mayor Pengilly's house; and

Mayor Pengilly's position on the port was reflected in each of the Attorney's decisions in 2020 and 2021.

It is clear on the evidence provided to the committee that any reasonable person would perceive a conflict of interest arose in those circumstances. In relation to actual conflict of interest, Dr Gray in her report to the committee noted, and I quote:

…an actual conflict exists if it is established that the existence of the port would have, as a matter of fact, impacted the Attorney-General's interests.

Dr Gray recommended that the committee find that the Attorney had an actual, as well as a perceived, conflict of interest. Dr Gray considered two matters when discussing the Attorney's conflicts, namely, her property interests on Kangaroo Island—particularly the property known as Gum Valley—and her friendship with Mayor Pengilly that has been previously discussed. It was the Attorney's interest in Gum Valley that caused Dr Gray to recommend to the committee that it find the Attorney had an actual conflict of interest.

Gum Valley, which is located across the road from a forest contracted to KIPT, generated income for the Attorney as a short-term rental. Advertised on Facebook as Gum Valley Retreat, searches indicate that that page has been taken down but that it was advertised on Airbnb as a short-term rental and on Facebook. Gum Valley has been marketed to tourists visiting the island. The 2020 assessment report noted the impact on tourism for the island.

By the very nature of operating a tourism-based business on the island, the Attorney had a pecuniary interest in the tourism industry. The Attorney's own evidence showed that she derived income from Gum Valley when she noted that her records relating to Gum Valley were with her accountant to complete her tax return for 2021. The Attorney's property on Kangaroo Island would have, on any reasonable and objective assessment, been impacted by the proposed port at Smith Bay. This enabled the committee to make the factual finding that the Attorney was in an actual position of conflict.

The Attorney was required, pursuant to paragraph 3.3 of the Ministerial Code of Conduct, to disclose this conflict to the Premier. The Attorney was requested by the code to turn her mind to the question of conflict, to which she emphatically denied a conflict. She has stated in evidence that 'there is no conflict of interest and accordingly no delegation will follow'.

As the first law officer in this state, the Attorney should, and I am sure does, have a clear understanding of what a conflict is. The denial of a conflict shows a complete disregard for proper governance processes and a disregard for the rule of law. The failure to consider the conflict again in her subsequent decision-making exacerbated the problem. A finding of conflict of interest, both perceived and actual in relation to a major project in South Australia, is reasonable ground to prompt the actual resignation of the Attorney as Attorney.

Paragraph (h) goes on to state that the house should find 'that the Attorney-General breached the Ministerial Code of Conduct, based on the committee's factual findings'. The weight of evidence that supports the findings of this committee and the Attorney's wrongdoing provide that, on the balance of probabilities, she was out of step with the rules and procedures of this house, with the standards expected by the community, and broke the black-and-white rules of the Ministerial Code of Conduct.

Paragraph 3.3 of the Ministerial Code of Conduct requires the Attorney to disclose a conflict to the Premier, and the Premier has repeatedly stated that the Attorney did not notify him of conflict. The conflict caused the Attorney to prejudice her decision in relation to the port at Smith Bay. In considering all the evidence brought before the committee, it is clear that the Attorney did not come to her decision with an unbiased mind in respect of the decision-making process.

The evidence provided by Mr Sergeant of the meeting that occurred in 2017 is clear evidence that the Attorney could not consider this application without prejudice. During that meeting, as I said earlier, the Attorney made it clear she considered the port was in the wrong place.

Dr Gray noted the potential cost to the state, as the Attorney's actions expose the state to risk of litigation and significant claim for damages. The recommendations of Dr Gray were handed down on 15 November, and I tabled the committee's report to this place on the 18th. The committee's findings are clear. The Attorney-General should resign as Attorney-General, without smoke and mirrors.

The Attorney ought to have resigned her commission as Attorney the moment the committee's report was tabled in parliament and, quite frankly, when the evidence to the committee was known to her. Resigning is the honourable thing to do but, in the same manner as the Attorney has failed to acknowledge her mistakes and biases in relation to the Smith Bay port proposal, she has failed to acknowledge the findings of the committee.

Former Premier Olsen resigned from his position following the release of the Clayton report into the Motorola affair. The Clayton report found that the then Premier gave misleading, inaccurate and dishonest evidence to a judicial inquiry. The former Premier did the honourable thing and resigned. The Attorney continues to fail in her duty. Ministerial responsibility requires the Attorney to resign as Attorney. Sadly, the house is now left to consider the breach of the Ministerial Code of Conduct and other breaches involved in her conduct of sufficient severity to amount to contempt.

On the basis of the select committee's findings, the house should now decide that the Attorney had misled the house on 26 May 2021, 2 August 2021 and 25 August 2021 and failed to recuse herself from an actual and perceived conflict of interest in relation to the development application for Smith Bay port on Kangaroo Island.

The house must further condemn the Attorney for breaching the Ministerial Code of Conduct in failing to declare her actual and perceived interest in the Smith Bay proposal. This house must:

(a) find that the Attorney was guilty of contempt for deliberately misleading the parliament following the factual findings of the committee that statements 1, 2 and 4 were false and were known to be false by the Attorney at the time each of those statements were made and were intended to mislead the house;

(b) find that the Attorney acted in a position of conflict of interest, both actual and perceived, based on the committee's factual findings and should be found guilty of contempt. The house should find that the Attorney-General breached the Ministerial Code of Conduct based on the committee's factual findings and consider that the breach of the code involved conduct of sufficient severity to amount to contempt; and, finally,

(c) suspend the Attorney-General from the service of the house for six days. It is a great shame and a stain on this parliament that this motion has had to be brought forward. I commend this motion to the house.

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Deputy Premier, Minister for Energy and Mining) (11:26): I will be fairly brief in my contribution to this debate. Let’s be very, very clear: the government opposes the motion and the government opposes the amended motion. This is an attempt to continue the kangaroo court which those others set up, and that definition is one—

The SPEAKER: Order, Deputy Premier, there is a point of order. Please be seated. Member for West Torrens.

The Hon. A. KOUTSANTONIS: The term 'kangaroo court' to a committee of this parliament is offensive and I ask that the minister withdraw it and apologise immediately.

The SPEAKER: Member for West Torrens, you being a member of the committee, I understand that you are concerned that the remark may also reflect on you. It is a subjective standard, Deputy Premier, so it may be that you reflect on whether you withdraw the statement.

The Hon. D.C. VAN HOLST PELLEKAAN: I withdraw and apologise. It has not gone without notice of those outside this chamber that plenty of people outside this chamber have referred to this committee as a kangaroo court. That is a fact. It is also a fact that as to the committee's findings which we hear so much about from those opposite, it is important that we put on the record that all of those findings, all of the deliberations of the committee essentially were split 3-2 in the internal voting.

I accept the majority view of the committee, but it would be a mistake for anybody to think that the majority view of the committee was anything more than 60 per cent of the members, barely over half of the members of the committee found in that position. It is an important thing to put on the record. Another very important thing to put on the record is the fact that the committee, in its wisdom, determined that these matters should be handed over to the Ombudsman to investigate upon.

But before the Ombudsman has had the opportunity to deliberate and provide some findings and come back with a response, the committee actually wants to move on in the interim and impose penalties—completely unfairly impose penalties. Why on earth would the committee, in its 60 per cent majority, think that it was appropriate for the Ombudsman to consider these things, to actually take it to a higher authority to determine the merits of the committee's findings, and yet, before receiving that information, decide that they also want to impose penalties and punishments on the member for Bragg?

The member for Bragg is an extremely capable, extremely hardworking, extraordinary capacity person who is an absolutely outstanding South Australian. It is terribly unfortunate that those opposite want to, in the blink of an eye, transition from findings which they wanted to pass on to the Ombudsman, to actually determine whether those findings really have merit or not, to actually try a cruel, personal attack on somebody. Absolutely disgraceful.

This is not about Kangaroo Island Plantation Timbers, this is not about Smith Bay, this is not about Kangaroo Island in general or any of the other things that have been raised. This is a cruel, personal attack to try to damage someone's credibility, and we will not accept that. We will not be a part of that. While I acknowledge that the amended version is essentially a very slight watering down of the original version, the government in no way agrees with this proposal.

I say as I did last sitting week: I think those opposite would be very wise to consider their own personal situations and how other members of their team—perhaps even just a 60 per cent majority of their team—would treat them if they found them in a vulnerable position that they could exploit, because that is all this is. That is all this is. This is not about Kangaroo Island Plantation Timbers, not about Smith Bay, not about the things that this house should be engaging in.

I fully accept the right of members of this chamber to have views and opinions about how each and every one of us should go about our business in this chamber. I accept that. But when the committee has already publicly said that it is not confident enough in its 60 per cent findings, that it cannot rest on those and that it asks that the committee's opinions be passed on to the Ombudsman for consideration, when the committee has done that it has admitted it requires further investigation before any consideration of penalties should be put forward—and that is if the Ombudsman finds in agreement with the committee.

There is every likelihood, in my opinion, that the Ombudsman would actually have a different view from what the committee put forward, in which case what we are discussing at the moment would be entirely inappropriate.

The Hon. A. KOUTSANTONIS (West Torrens) (11:31): It is interesting that the Deputy Premier thinks 60 per cent of a margin is not enough, given that he won the Deputy Premiership with 63 per cent of the vote. Perhaps he might want to reflect on that. It is important to note that we are not canvassing here something that the Ombudsman can. The Ombudsman has no remit at all and no jurisdiction to punish any member for misleading the parliament. That is solely our responsibility.

That is where the Deputy Premier's argument fell over. The Ombudsman is not investigating if the Deputy Premier misled the parliament because he cannot. He is a statutory officer of this parliament who reports to us. He cannot impose any penalties on the parliament for proceedings in here. Parliamentary privilege precludes that. Only we can be masters of what is said here.

If a parliamentarian can deliberately mislead this parliament and get away with it, then our representative democracy crumbles, because we rely on some conventions and principles in this place that a deliberate misleading of this parliament is a contempt. Erskine May says it and the House of Representatives says it. The committee has investigated this matter and found that the Attorney-General is guilty of a contempt, and now we are debating that matter, about what penalties we should impose.

If the parliament chooses not to impose a penalty on the Attorney-General for deliberately and intentionally misleading this parliament on three occasions—and I am not going to argue the merits again because I think it was ably done by the member for Enfield—then ministers can get up and say anything they want at any time. For the Deputy Premier to then speculate on the outcome of the Ombudsman's inquiry I think is deeply inappropriate—deeply inappropriate.

The Ombudsman should be allowed to conduct his inquiry unfettered in any way by this chamber, which is what I understood to be the reason the Attorney-General was standing aside. Because, the very point of the Ombudsman's inquiry, which is not as a result of a government referral but our committee referral, as the member opposite says, he argues that we should not vote on this because the Ombudsman is inquiring into this—well, the Ombudsman is not inquiring into this because the parliament was misled; he is inquiring into maladministration, misconduct and conflicts of interest—and he then argues that the government is supporting the Ombudsman's inquiry despite both members of the committee, I understand, not supporting the Ombudsman referral.

The government has not referred this to the Ombudsman; the committee has. If it were up to the government, there would be no penalty. The member for Bragg would still be the Deputy Premier and Attorney-General and planning and local government minister. There would be nothing. It would be business as usual. Had it not been for this parliament acting, nothing would have changed, and that is why we have to act now. You cannot mislead us. I draw your attention to the practice of the House of Representatives 'Conspiracy to deceive', and I quote:

To conspire to deceive either House or a committee of either House could be punished as a contempt. The abuse of the right of petition and forging or falsifying documents could be examples of this type of contempt.

Regarding 'Deliberately misleading the House', according to Erskine May, it states:

The Commons may treat the making of a deliberately misleading statement as a contempt. In 1963 the House resolved that in making a personal statement which contained words which he later admitted not to be true, a former Member had been guilty of a grave contempt.

That was the Profumo case in 1962-63. The current Attorney-General has not resigned. If the member for Bragg had resigned her commission as a member of Executive Council and as Attorney-General, this would not be occurring. There would be no other punishment imposed by the house. That is sufficient punishment. That is sufficient and that is the appropriate convention.

Since the Premier and the government refuse to have the Attorney-General stand down or sack her or compel her resignation, the house has no other option than to expel her from the services of the house. If the Attorney-General makes a statement now that she is resigning as Attorney-General, this motion will be withdrawn because there is no greater insult that any member can give their constituency than not to be here doing their job. Being named by a Speaker and then removed by the house is the greatest insult you can give your constituency.

The Deputy Premier is guilty of misleading the parliament—that is without question. It is beyond doubt. Any reasonable person would know that we were lied to deliberately and we have to act. If we do not act the parliament is a joke, and if the parliament is a joke our democracy is a joke, and it is not; it is serious. It is so serious that we now have a new Deputy Premier and we now have a new planning and local government minister, but we have the same Attorney-General. That is unacceptable.

Ministers in the house of government cannot sustain the survival of a no-confidence motion. It is unacceptable. Nowhere in the Westminster tradition would this be tolerated, and if it is tolerated by the house the people should act. The Deputy Premier is probably going to be expelled from the parliament for six days. The constituency of Bragg will go unrepresented in this chamber for six days or however long we sit. What an insult to them. What an insult to them because of pride—the pride that she will not stand down as Attorney-General.

Let's think about the position the Ombudsman is now in. He directly answers to the Attorney-General. He had to write to us to conduct his inquiry because of perceived conflict because of the position the government have put him in of maintaining the member for Bragg in that position. Why sack her then as Deputy Premier and planning and local government minister but leave her as Attorney-General? Why? If she has done nothing wrong, as the Deputy Premier says, why did she resign those positions? Because it is obvious that she has done something wrong. The committee found it. The parliament passed a no-confidence motion. It is clear.

Do not do it to the people of Bragg. They deserve better than this. Get the Attorney-General to resign her commission immediately and we will withdraw the motion. If the Attorney-General resigns after she is expelled, we will rescind this motion and return her to the parliament. One punishment is enough, not two. The member for Bragg cannot get away with this and she should not.

The Hon. J.B. TEAGUE (Heysen—Minister for Planning and Local Government) (11:39): Honourable members, the bottom line for the house is that the house cannot and should not move on the recommendations of this select committee. There is one thing that we can all agree on: this is serious subject matter indeed. I have addressed in my remarks on 18 November a view in relation to the relevant law and the process. What is for me to emphasise here today—

The Hon. S.C. MULLIGHAN: Sir, I rise on a point of order.

The SPEAKER: Minister, there is a point of order. Member for Lee on a point of order.

The Hon. S.C. MULLIGHAN: Sir, I rise on a point of order. I seek your guidance: is it appropriate the member for Heysen makes a contribution or participates in this debate given that in his previous position as Speaker he has already ruled on this matter?

The SPEAKER: Member for Lee, I will reflect on that matter. I also understand that the minister is exercising powers delegated to him as Attorney-General. I will reflect on that matter in relation to standing orders.

The Hon. J.B. TEAGUE: In my remarks on 18 November, I highlighted the two primary defects in relation to the way in which the select committee conducted its work. Those observations are matters of record. They are, firstly, that the committee's work is tainted by prejudgement—that is evident and I will expand on that in a moment—and, secondly, in terms of the process adopted by the committee, the actual working through of the committee process was extraordinary in its one-sided approach to its inquiry in the matter.

As I said on 18 November, counsel assisting—the first time that such resort has been taken—is better characterised as a counsel for the prosecution. I ask members: where do we ever see a trial in which a counsel for the prosecution is asked to make submissions and then switch gears and quickly write the judgement? That is akin to what has occurred in this process.

It is an inadequate process; it is an unreliable process. The work of the Ombudsman has been referred to and I just submit that this is appropriate work for the Ombudsman to be doing. I note that the member for West Torrens's observations about some reference the Ombudsman might have made about whether or not to proceed is incorrect. The Ombudsman raised a question but has otherwise indicated his complete comfort with carrying on this work, and it is appropriate that we allow the Ombudsman to do that work and to produce outcomes.

In truth, the substance of the matter that underlies the committee's inquiry was a matter finely balanced and the minister, in undertaking her important work, needed to traverse work that had been done over the course of many years over multiple governments and multiple ministers. I have referred to the chronology of events set out in Frances Nelson QC's submissions at paragraph 3.

Otherwise, I have set out the relevant matters, the tests that are to be applied, particularly in relation to conflict, the mischaracterisation that has been put in the course of the select committee hearing by counsel assisting the committee. The grave conclusion, should the house move in response to this report, is that the house would be endorsing a process which is unfortunately tainted by partisan prejudgement and is extraordinary in the procedural unfairness that it has accorded to the subject of its inquiry.

We not only see that on the face of the report but we also see it in what has transpired in the course of the last sitting week. Towards the end of the day on 18 November, I rose to draw the attention of the house, to the extent that I could at that time, to remarks made by the member for West Torrens, which are evidence of not only his own prejudgement of the subject matter but also his capacity to have drawn his colleagues into the imposition of his will and not on evidence before the committee but rather on an outcome that was predetermined.

When the member for West Torrens commenced his remarks in the afternoon on 18 November, he referred to Orwell and Nineteen Eighty-Four and he quoted from that text. I do not know if he was just rehearsing Samuel L. Jackson's work in Ezekiel 25:17 equivalent or whether he actually meant those words to apply when he said:

…if all others accepted the lie which the Party imposed…then the lie passed into history and became truth.

He may have simply been rehearsing those lines. The evidence is that it is the member for West Torrens himself who has engaged in the misleading of the house in the course of this debate and relevantly has withdrawn and apologised for doing so.

The second part of the member for West Torrens' contribution in this respect was not available to me when I got on my feet at about 6.30 on 18 November. It was an hour later. I want to refer to it directly because not only is it evidence of that misleading but it shows us the evident prejudgement and persuasion of colleagues because the member for West Torrens said that there existed advice between Ingo Block and the Speaker—

The Hon. S.C. MULLIGHAN: Point of order.

The SPEAKER: There is a point of order. Minister, please be seated.

The Hon. S.C. MULLIGHAN: This matter has already been canvassed before the house. The member for Heysen at the time made a personal explanation and took exception to it, and it was withdrawn by the member for West Torrens and an apology was made. The matter has been dealt with. To raise it again only queries whether the member for Heysen—

Members interjecting:

The SPEAKER: Order! The member is addressing me.

The Hon. S.C. MULLIGHAN: —actually took offence in the first place.

The SPEAKER: Very well, member for Lee. I will listen carefully to the contribution being made by the minister. I will remind the minister that there is some force in the submission from the member for Lee, but I will continue to hear the minister.

The Hon. J.B. TEAGUE: The words that I was unable to go to precisely because they were not available to me at the time quite properly were withdrawn and an apology given.

The Hon. A. Koutsantonis: Where's Vickie's? Where's Vickie's apology?

The SPEAKER: Order!

The Hon. J.B. TEAGUE: The reason for raising them in this context, other than the fact that it is no small thing, as the member for West Torrens has adverted as recently as in this debate, to mislead the house, much less deliberately, is that there is, unlike the usual rhetorical question that comes from the member for West Torrens about what might arise or 'we don't know, but this might occur and who am I to know, but this might happen', there is a positive assertion of the existence of documents that do not exist, which led to a charge that draws the Speaker's office into disrepute, so it is proper that they were withdrawn and an apology promptly given. What the video reveals—and members might reflect on this—

The Hon. A. Koutsantonis: We are defending Vickie, remember.

The SPEAKER: Order!

The Hon. J.B. TEAGUE: —is that in the course of giving those remarks the member said, 'Well, hang on. If these non-existent documents were unredacted'—remember, they do not exist, it is a false statement and the whole thing had to be withdrawn. We have chiming in. He is looking for words, 'What would this constitute?' and his colleagues are chiming in, evidently convinced of the case that he is putting: 'Would it be a cover-up? Would it be conspiracy? Would it be collusion?'

The fact is that the member for West Torrens was prepared to put to this house the positive existence of documents that do not exist, in circumstances where his colleagues were convinced of the case that he was putting. The member for West Torrens is a member of the committee. The documents that the committee received were not made public in their entirety. He is the only one who on 18 November was in a position to be opining about documents that he had read that had been provided to the committee. Evidently, colleagues present in the course of his contribution are already convinced of the existence of the documents and their persuasive character, and in turn are tainted by the whole process before we even have a chance to read the outcome of the report.

I really and truly invite members opposite to consider the videorecording of those remarks. Members opposite who were chiming in and offering their amplification of those remarks might reflect on that because they are perfectly capable of drawing their own conclusions based on the evidence, and if they are drawn into the persuasion of the member for West Torrens based on these non-existent documents, then what greater insight do we have into the prejudgement that has occurred in the course of this committee's work?

We have a contribution in the house that is adverting to the existence of non-existent documents, for the purposes of extracurricular debate in the house late in the afternoon, where we see revealed what has clearly gone on on this side—what has clearly gone on on this side. To the extent that the member for West Torrens' colleagues have somehow been drawn into the Kool Aid that the member for West Torrens is providing to them, they ought to reflect on that and in turn on the reliability of any—

Members interjecting:

The SPEAKER: Order!

The Hon. J.B. TEAGUE: —findings of this select committee that are supported by the member for West Torrens. The fact is that the outcomes of the select committee's work and its recommendations are so unreliable as to not be able to be acted on. As I said on 18 November, these recommendations simply risk drawing the house into disrepute.

The SPEAKER: Order! There is a point of order, minister.

Ms MICHAELS: As the Chair of the committee, I find it highly offensive that he says that our committee work has been unreliable, and I ask him to withdraw and apologise for that.

The SPEAKER: Minister, there has been extensive commentary in relation to the nature of the committee's work, the views that may not have been formed by members, so of course later formed part of that committee's quorum. The standard, as you are aware, is a subjective one in relation to offence, and the presiding member of the committee has taken offence. I give you an opportunity to withdraw and apologise.

The Hon. J.B. TEAGUE: I withdraw and apologise and rely on my remarks in relation to the record.

Members interjecting:

The SPEAKER: Order!

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (11:53): We are debating—

Members interjecting:

The SPEAKER: Order!

The Hon. J.A.W. GARDNER: We are debating today a motion that is born of malice and should be disregarded by this parliament. You can tell the nature of the malice if for no other reason than when they were putting forward a proposition, despite the fact that members of the government found it utterly offensive, we listened in silence, yet barely a member on that side of the chamber can restrain themselves from gleefully digging in, interjecting, shouting indeed. It is a sign of the thuggery and the bullying behaviour—

The Hon. A. KOUTSANTONIS: Point of order, sir.

The Hon. J.A.W. GARDNER: —that led to the introduction of the investigation in the first place.

The SPEAKER: Order! Minister, there is a point of order. Please be seated.

The Hon. A. KOUTSANTONIS: Quite helpfully, sir, the word 'thug' is unparliamentary. I ask the member to withdraw and apologise.

The Hon. J.A.W. GARDNER: To whom did I address it? The 'thuggery of—

The Hon. A. Koutsantonis: To the opposition.

The SPEAKER: Order!

The Hon. J.A.W. GARDNER: —the behaviour of the opposition', sir, was not addressed to an individual, and I submit that the house—

Members interjecting:

The SPEAKER: Order!

The Hon. J.A.W. GARDNER: —has never required an apology.

The SPEAKER: Minister—

Members interjecting:

The SPEAKER: Order, members! The minister, I understand, is making submissions in relation to the point of order. I understand that the member for West Torrens is raising a point of order and has taken offence. I understand that it is raised on the basis that the matter, or rather the proposition, that a member is a thug was directed to him. It is a subjective standard, minister. I give you an opportunity to withdraw and apologise.

The Hon. J.A.W. GARDNER: Sir, I did not address the word 'thuggery' in relation to one individual.

The SPEAKER: You may not have, minister, but as I understand it the member has, on a subjective basis, taken it as addressed to him.

The Hon. J.A.W. GARDNER: Sir, do I understand from your submission that the member, having assumed that the word 'thuggery' must have applied only to him, that the house is to hold—

Members interjecting:

The SPEAKER: Order!

The Hon. J.A.W. GARDNER: —that a member cannot refer to a range of people that may or may not include a member, but that member—

The SPEAKER: Order!

The Hon. J.A.W. GARDNER: —thinking that maybe their behaviour draws that assertion, requires an apology?

The SPEAKER: Minister, there is a point of order to the point of order.

The Hon. S.C. MULLIGHAN: Point of order: this is not a matter that is open to debate by the member for Morialta, sir. You have ruled: he either follows the ruling or you name him, sir.

The SPEAKER: I am giving him an opportunity—in fact, there is another point of order.

The Hon. D.C. VAN HOLST PELLEKAAN: Point of order on the point of order, sir: you did not rule, you invited the member to do something.

The SPEAKER: Yes; that's quite right.

The Hon. D.C. VAN HOLST PELLEKAAN: My point of order is that there is very significant precedent in this house that, when a remark is directed specifically to a member in isolation, that member may take offence, but when a remark is directed to a group of members—or the opposition, or the government—as a whole, then that requested point of order does not apply.

The SPEAKER: Very well. Members, we are confining ourselves for the moment to minutia in the standing orders. These matters are significant; however, having listened carefully to the submission from the minister, he indicates he has not named an individual member. I have given him the opportunity to withdraw. I have not ruled in relation to that matter. I continue to give the member that opportunity. He has indicated to the house that he is not referring to an individual member. I think we can resolve the matter on that basis. Minister.

The Hon. J.A.W. GARDNER: Thank you, sir. The fact is that this motion we have before us today is the final step in what I believe to have been a planned sequence of events put forward by members of the opposition, in its first account—

The Hon. L.W.K. Bignell interjecting:

The SPEAKER: Order! The minister has the call.

The Hon. J.A.W. GARDNER: The assertion by the member for Mawson is offensive. I do not take personal offence because I am absolutely certain that I didn't, and I am also certain that no-one on the government benches submitted to that behaviour—

The SPEAKER: It has not been raised, and in fact I did not hear it.

The Hon. J.A.W. GARDNER: I am reflecting, sir, on the behaviour of those opposite, which has been consistent throughout this debate. Those members who argued that there should be a committee in the first place had, in my strong view, and for which there is very substantial evidence, prejudged the matter. They had predetermined a position. They said that the outcome would be consistent with their view.

In putting their proposition to members of the crossbench, I submit that every single member of the crossbench who received that submission—whoever it came from—would know in their hearts, would know in their minds, that such a view had been predetermined, prejudged, and that no matter who the Labor Party put forward to be on the committee their findings, their views and their arguments would be beyond a doubt from the very beginning of the inquiry.

It is in that view that I think many people in the community, many people familiar with the material, have little regard for the findings of this committee. I submit the committee did itself no credit in relying on an approach the member for Heysen described as a counsel for the prosecution, which has no basis in the Westminster institution. It does have a basis in the American political tradition and the appointment of a special prosecutor to accumulate evidence for a political end and a political purpose.

This committee, by providing the framework within which such a special prosecutor could do their work, could find out whatever they could to make a case against the member for Bragg, did itself no credit. It brought to this house a new approach, a novel approach, a bad approach. It is an approach that I submit is very familiar in America where, all the time, whenever you have a president and a congress of different houses, you always have one looking to find a special prosecutor to find out information that could be argued against the other. It is the Rudy Giuliani approach, and it did the committee no credit.

It does the house little credit, of course, that it went on, but it is understandable that the house went along with the views of the committee because traditionally that is what houses have done. But it does not follow that, because the committee has submitted for the house's consideration recommendations in relation to punishments, even if a slim majority of the house had come to the conclusion that it would support the no-confidence motion, which of course was the third step on the predetermined case—the putting of the case of privilege, the holding of the committee and the no-confidence motion, and this is the fourth step—even if members supported that third step, there is no requirement to support the fourth step.

Indeed, the member for Enfield this morning, despite being the Chair of the committee whose reputation she has been so quick to jump up and defend despite its Giulianiesque special prosecutor approach, has disregarded the recommendations of the committee. The Chair of the committee and—

Members interjecting:

The Hon. J.A.W. GARDNER: The members of the opposition cannot hold themselves in. They must continue shouting—

The SPEAKER: Order!

The Hon. J.A.W. GARDNER: —because that is the behaviour they bring to this house every day. The Chair of the committee, not content—

The Hon. L.W.K. Bignell: At least we don't give up!

The SPEAKER: Order, member for Mawson!

The Hon. J.A.W. GARDNER: The member for Mawson cannot restrain himself. The Chair of the committee, despite having relied upon the Giulianiesque special prosecutor to come up with a series of recommendations which she put to the house and which she argued be put forward and debated as a matter of priority, this morning stood up and walked away from them. She walked away from three of the recommendations, deleting two and taking one further one away.

I bring to the house's attention some of the debate that has further gone on in relation to the recommendations from this committee that had prejudged the outcomes of what it would find. It had already set in place the punishments that it was going to argue and, I would continue to argue, its findings should not be taken with the same degree of sincerity by this house as we have traditionally done.

We have absolutely to consider the merits of the case in relation to the arguments for the punishments. Three of the punishments that remain, the items in (f), (h) and (i), all relate to matters of conflict of interest, the Ministerial Code of Conduct and, indeed, (i) the breach of the code of conduct and are 'of sufficient severity to amount to contempt'.

These are matters that are being considered by the Ombudsman. Not half an hour ago, the member for West Torrens argued that no-one in this house should say anything that would get in the way of the Ombudsman's inquiry. For the house to take a position on these three items would be in direct contravention of the member for West Torrens' argument and it would, I agree, be utterly inappropriate for this house to intervene in those matters being investigated by the Ombudsman.

For the member for West Torrens to argue that nobody should be talking about anything that might influence Ombudsman while arguing in favour of a motion that determines an outcome of what the Ombudsman is investigating is extraordinarily odd or maybe incompetent.

Mr Whetstone: Yes, he is odd.

The SPEAKER: Order!

Members interjecting:

The SPEAKER: Order!

The Hon. J.A.W. GARDNER: The fact is that the members of the opposition who hang on the member for West Torrens' every word and do whatever he says for whatever reason they do should think on the fact that his very argument should preclude them from voting for the motion because (f), (h) and (i) are in direct contravention of what he has argued.

That leaves us with the first three matters: the alleged misleading of this house. Of course, it is open to members of the house to have noted the report, as we did in the last sitting week, and to have voted a vote of no confidence. If they felt that the mere fact the member for Bragg's decision had been referred to the Ombudsman, that may well have given a member or members of the crossbench, for example, reason to vote for the no-confidence motion.

But it does not necessarily follow that they agreed with every aspect of those recommendations in the report. It does not follow that they agreed necessarily that the Attorney-General, as she then was, the member for Bragg, misled the house. It does not follow, and so—

Members interjecting:

The SPEAKER: Order! The minister has the call.

The Hon. J.A.W. GARDNER: —I would submit that if a member felt there may have been a conflict—and I do not believe there was—then it only lies for them to be convinced that she not only misled the house if she did but that she intentionally did so. It has been not even argued against by those opposite some of the points put forward by Frances Nelson in the committee debate. It was not challenged, the submission put forward in relation to when the member for Bragg found out that KIPT had involvement with the timber across the road. The member for Enfield described it before as the plantation forest opposite Gum Valley contracted to KIPT. It is clear to me that, for the charge to stick, the member for Bragg would have to have known the contractual arrangements related to KIPT, but the member for Bragg—

Members interjecting:

The SPEAKER: Order!

The Hon. J.A.W. GARDNER: —was not in the favourable position—

Members interjecting:

The SPEAKER: Order, member for West Torrens!

The Hon. J.A.W. GARDNER: —that some other members were, to be on such close terms with senior officers within KIPT or the people they employ or contract. That is not necessarily known and the case has never been put. It has certainly never been satisfactorily put that the member for Bragg said anything that she did not know to be true. Indeed, she has made it very clear that that has long been a private forest.

The fact that it had been contracted for logging or clearance, or whatever the situation is, by KIPT not having been established that she knew that—indeed, she knew that it would be logged at some point by somebody—also goes to the conflict, the fact that there was always going to be logging there. But the opposition, in their committee and in this house, have never satisfactorily established that the member for Bragg was familiar with those contractual arrangements at any point that is relevant to the matter.

The second basis, the second pillar, of the member for Enfield's prosecution based on Dr Gray's recommendations was this close personal friendship, this close family friendship, with the Mayor of Kangaroo Island. I know Michael Pengilly. Many members in the house know Michael Pengilly. The member for Bragg has known Michael Pengilly for a long time. It does not necessarily follow that, because we are former colleagues on friendly terms, it would amount to a conflict in any way.

I established in the house last sitting week that the member for Bragg has not even supported Michael Pengilly's every political attempt. The member for Bragg and Michael Pengilly are of different ages, as the committee heard. They went to different schools. The member for Bragg was at the Parndana Area School to year 11. Michael Pengilly was not. The fact is that there is not the evidence to establish a close personal friendship, relationship or financial relationship of any sort between the member for Bragg and Michael Pengilly that would sustain a conflict of interest or a misleading of the house in any way.

If anyone looks at the contributions by the member for Enfield today or two weeks ago, they can go through that. So much of this hangs on the idea that the member for Bragg and Michael Pengilly are somehow intertwined in their relationship. They are not, certainly no more than many other landholders on the island or members of parliament with interests on the island or members of parliament with friendships with people who work for KIPT. There are a range of people who own land on Kangaroo Island or have interests in this matter who have much closer relationships with key players than the member for Bragg does with Michael Pengilly.

It would be completely unjust for this house to impose a penalty based on the idea that the member for Bragg knew about contractual arrangements between a forest across the road—that had always been a private forest, or at least for as long as I am aware of, and was always going to be logged at some point—and a company that now had a contractual arrangement the member for Bragg was not aware of as one pillar, and as a second pillar the idea that Michael Pengilly and the member for Bragg have a closer personal relationship than any other number of people involved in this case.

What we are debating this morning could amount to a serious injustice should the house vote for this motion. The fact is that to establish misleading the house it is not enough to establish and put a sentence of a two-day suspension on a member for getting a fact wrong, if indeed that happened. You must also demonstrate intent, and that has not happened. Secondly, to establish a contempt of this house based on matters that are currently being considered by the Ombudsman would, as the member for West Torrens said, or as the member for West Torrens described—he did not realise he was saying it—amount to this house forming a view and making a case for something that is currently under the Ombudsman's consideration. It is utterly inappropriate.

I tell you, sir, this house has a significant choice ahead of it. It has not heard evidence to establish a firm case against the Attorney-General for a conflict—

An honourable member interjecting:

The Hon. J.A.W. GARDNER: —former Attorney-General—nor of a misleading of the house. I urge all members to oppose this motion. It remains, as was the last one, a nasty, personal, political, vindictive motion that all members should oppose.

Ayes 23

Noes 22

Majority 1

AYES
Bedford, F.E. Bell, T.S. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Brock, G.G.
Brown, M.E. (teller) Close, S.E. Cook, N.F.
Duluk, S. Gee, J.P. Hildyard, K.A.
Hughes, E.J. Koutsantonis, A. Malinauskas, P.
Michaels, A. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Picton, C.J. Stinson, J.M.
Szakacs, J.K. Wortley, D.
NOES
Basham, D.K.B. Cowdrey, M.J. Ellis, F.J.
Gardner, J.A.W. Harvey, R.M. (teller) Knoll, S.K.
Luethen, P. Marshall, S.S. McBride, N.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Pisoni, D.G. Power, C. Sanderson, R.
Speirs, D.J. Tarzia, V.A. Teague, J.B.
Treloar, P.A. van Holst Pellekaan, D.C. Whetstone, T.J.
Wingard, C.L.

The SPEAKER (12:14): Members, pursuant to clause 1(e) of the motion passed, as agreed to by the house, the Attorney-General has been suspended from the service of the house for six days. I direct that the Attorney-General withdraw from the chamber for six days. I fix the first day contemplated by the motion as today, Tuesday 30 November 2021. I direct that the Serjeant-at-Arms furnish the Attorney-General with a copy of the motion of the house.

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