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Parliamentary Privilege

Cassy O'Connor MP

Cassy O'Connor MP  -  Thursday, 11 May 2023

Tags: Parliament

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, I rise again today to discuss parliamentary privilege and respond to the Equal Opportunity Commissioner's recent letter to the Premier. As this correspondence has been put on the parliamentary record, a response to it should also be put on the record.

The commissioner's letter, dated 5 May, about the naming of public servants in parliament is substantially similar to another letter now in the public domain, which the commissioner asked to be shared with the Joint Standing Committee on Workplace Culture Oversight; or at least conversed with the committee. Standing Order 303(1) states -

The evidence taken by any Select Committee, and documents presented to such Committee which have not been reported to the House, shall not, unless authorised by the Committee, be referred to in the House by any Member or published or disclosed by any Member or by any other person. [OK]

While the commissioner's 5 May letter is a separate letter, the evidence contained therein is almost exactly the same as that provided to the committee. This letter from the commissioner may be in breach of Standing Order 303 as is, arguably, the disclosure of this evidence by the Premier on Tuesday.

Mr Deputy Speaker, why was this second letter prepared and sent to the Premier? Neither the Premier, nor the commissioner, has denied a request was made for a second letter to be sent. Instead, we had been told by the Premier it was the commissioner's decision to send it. This is obfuscation. Nobody is alleging that she was coerced. The refusal to answer this question is an admission by the Premier, or his office, that they requested, or suggested, a second letter be addressed to him in his capacity as Premier. The Premier is only one MP. He is not, in any way, master of this place. It is not appropriate for the Premier to exclusively determine the action to be taken as the commissioner requested, and as he has done.

We also question whether it is appropriate, or within the commissioner's remit, to advocate for persons and criticise the conduct of parliament in this manner. The Anti-Discrimination Act empowers the commissioner to advise and make recommendations on discrimination and prohibited conduct. This conduct, however, has not been alleged. While the terms of reference of the Independent Review into Workplace Culture here provided the commissioner with a broad remit to prepare this review, it does not operate in perpetuity. Nor does it make the commissioner, or the Premier, arbiter on parliamentary privilege, the Standing Orders, or the conduct of this place.

The commissioner's letter demonstrates she, perhaps, does not understand parliamentary practice in respect of privilege. Parliament has exclusive cognisance over matters of privilege, as noted by Blackstone:

Whatever matters arise concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates and not elsewhere.

Mr Deputy Speaker, this unilateral assessment of the complaint's credibility has now been put firmly in the public domain through no appropriate process we can identify. This is most regrettable. I note Ms Bolt's letter says to the Premier:

I write to you as a matter of courtesy to raise concerns regarding recent behaviour demonstrated in parliament which has been brought to my attention.

No doubt, by a senior public servant, Mr Deputy Speaker.

If these matters were examined by parliament as the exclusive cognisance principle dictates, it would have gone through a formal and appropriate process. Contrary to the commissioner's claims, people aggrieved with statements in parliament do have a right of reply under Standing Order 352 which provides for a citizen's right of reply. This is the appropriate avenue. It also provides for an assessment of the alleged adverse impact.

Further to the citizen's right of reply, Standing Order 325 provides the Committee of Privileges and Conduct may investigate a breach of the provisions of the code of conduct. This is how an MP can be held to account for any improper use of privilege. I note no member has been referred to this committee in relation to any of the matters outlined in the commissioner's letters.

I further note the following quote from the ABC reporting on this matter:

The Director of the Centre for Public Integrity, Geoffrey Watson SC, said there is a long-standing convention in Australia's federal and state parliaments to avoid naming low-level public servants to protect their privacy. 'That convention does not necessarily apply to those who are very high in the department, especially heads of departments, and there is no reason it should', Mr Watson said.

He said it was appropriate for parliamentary privileges committees to punish MPs who misuse their freedom of speech in parliament, but he said - 'I don't know of any parliament which has gone so far as to remove privilege in this kind of select and rather strange way'.

Mr Deputy Speaker, for context, there are 546 parliaments in the world, 142 of which follow the 400 year old Westminster tradition, to some extent. We question whether the Premier has taken expert advice on this matter. The extremely quick turnaround of his announcement for a Standing Orders review suggests not.

Jurisdictional matters aside, it is disappointing it was this issue, of all issues, the commissioner chose to continue to pursue. The Motion for Respect report identified it is often MPs and senior managers who are responsible for bullying and sexual harassment. It seems continued advocacy by the commissioner has been on behalf of very senior public servants who are usually only named in relation to accusations of serious or improper conduct or questionable administration. This conduct can also involve very serious impacts on the mental health of subordinate staff or other members of the community who can be harmed by improper conduct, bullying or harassment from senior managers. These senior public servants are largely only answerable to their minister. In the event there is improper conduct which is political in its nature, they are often not appropriately managed by their ministers.

Parliament has long been a place where this conduct is scrutinised and exposed - as it should be. Curtailing this authority would weaken one of the few avenues victimised staff and members of the community have to pursue justice in relation to the poor workplace practices or improper conduct of senior public servants. This would not contribute to safe workplaces in our public service.

Furthermore, I respectfully suggest the commissioner's assumptions are flawed. It is assumed referring to professional titles in parliament, rather than names, would reduce the risk of psychological harm. This ignores the fact that media outlets also report names and are far more widely read than Hansard. Journalists do not avoid printing names of senior public servants merely because they are not spoken in parliament. A senior public servant's identity can also easily be identified by title. Matters should be pursued through appropriate processes, not presented as fact in correspondence to the Premier, who is ultimately a politician with politician's motives.

This matter has, regrettably, been handled very poorly by both the Premier and, unfortunately, the commissioner. The Premier needs to abandon this course of action.