Corruption commissioner might resign, senior public servants caught in constitutional crossfire

Gunfight at the O.K. Coral” (1957) L-R – Doc Holliday (Kirk Douglas), Wyatt Earp (Burt Lancaster), Virgil Earp (John Hudson), Morgan Earp (DeForest Kelley).

The head of Western Australia’s Corruption and Crime Commission might resign as he finds himself in the middle of a stand-off between parliament and the executive government, with Premier Mark McGowan backing two of his most senior public servants in a clash of constitutional powers.

McKechnie has written to Attorney-General John Quigley to say he is worried that he may be put between a rock and a hard place by the parliamentary Procedure and Privileges Committee, which has summonsed him to appear today (Friday). He thinks the committee might ask him questions he can’t answer without breaching the legislation that governs his role, and then accuse him of contempt of parliament if he refuses.

John McKechnie

This clash is a test of the considerable powers granted to the CCC by the parliament, via the law that created the independent watchdog.

The commissioner is currently trying to use those powers — including a broad right to compel the production of documents — to investigate “allegations of serious misconduct and corruption in relation to the use of parliamentary electoral allowances” by MPs.

As part of that ongoing investigation, the CCC ordered the Department of the Premier and Cabinet to provide a swag of messages from the email accounts of three former MPs and their staff — but the privileges committee argues the executive government had no right to hand them over, without at least giving it a chance to assert parliamentary privilege over some of the information and possibly block the CCC’s access.

At face value, this was “an extremely serious intentional breach of parliamentary privilege” on the part of DPC director-general Darren Foster “and all those advising and assisting him” in the committee’s view. The deputy director-general of the DPC policy and reform division, Emily Roper, later refused a summons to bring all the documents to the committee when Foster was overseas.

A formal inquiry will now investigate and report on whether Foster and Roper breached parliamentary privilege or committed contempt of the upper house.

It’s not entirely a partisan political fight. Legislative Council president and government MLC Kate Doust is “shocked and appalled” at Roper’s “cavalier disregard of the committee’s lawful right to those documents”.

Committee says ‘good faith’ negotiations were abandoned

The committee says it warned Foster “repeatedly in no uncertain terms in writing … that he personally, and other officers of the Executive, risked being in contempt of Parliament” if they handed the emails directly to the CCC. It also told him he had legal grounds to refuse the CCC’s request for the documents, under the respective laws governing both the watchdog and parliamentary privileges.

The committee was outraged that Foster ignored its pleas and “unilaterally appointed officers of the Executive (being staff of the State Solicitor’s Office) to trawl through ‘tens of thousands’ of emails of three former Members of the Legislative Council and their staff in order to identify, separate and exclude those documents that those officers of the Executive adjudged to relate to ‘a proceeding in Parliament’.”

Darren Foster

Essentially, the parliamentarians are saying these unelected public servants had no right to make the call as to whether privilege applied to some or all of the huge cache of documents, which could contain all manner of sensitive information sent or received by the former MPs.

Members of the privileges committee are particularly outraged because they believed they were working out a process to manage the issue, which involved bringing in an independent former judge to sift through the information. It reports it was in “good faith negotiations” but the department and the watchdog changed their minds, and developed their own process that would be quicker and did not involve parliament at all.

McKechnie disagrees entirely. The former judge believes the head of DPC had no choice but to give his investigators what they asked for, under the watchdog’s legislation.

While the privileges committee wants to haul in McKechnie, the CCC is also holding its own public hearing today and broadcasting live on its website. It is “keen to hear from anyone in the community who believes they may have relevant information which would assist in its investigation” into the risk of parliamentary allowances being rorted. “The Commission’s broad investigation includes whether a lack of public accountability and transparency as to how members of Parliament spend their entitlement allowances is a serious misconduct risk,” a statement explains.

Just following orders?

In McKechnie’s view, Foster acted “very professionally and cooperated with the commission to the fullest extent” by seeking assistance from the State Solicitor’s Office and McGowan also stood by his most senior public servant.

“The Government has done the right thing legally and the right thing morally, and I think the right thing by the public of Western Australia, in standing against potential corruption by former MPs,” the Premier said.

McGowan has rejected calls from the opposition for Foster to be sacked.

“I commend Mr Foster on what he has done,” the Premier told the chamber. “He has cooperated with the CCC against potentially corrupt action by former members of parliament. I commend what he has done and I think you need to read the report a little more deeply before you come in here defending potentially corrupt action by former members of parliament.”

The committee has summonsed Foster to appear today as well, and wants him to produce the documents that his deputy refused.

Commissioner’s concerns

McKechnie set out his uneasiness about being called to appear before the privileges committee in a letter to Attorney-General John Quigley.

In his view, and based on the committee’s earlier accusations of contempt against Foster and other DPC staff, the parliamentarians were likely to effectively demand that he breach the legislation that establishes his powerful office and governs how he discharges his duties.

“I am personally concerned following the committee’s earlier correspondence that I may be found in contempt of the House,” he reportedly wrote in the letter. “Before such an event I would, of course, reflect on my ability to continue to lead the commission.”

McKechnie believes parliamentary privilege also has its limits and does not support the committee’s claim that only it has the right to go through the emails and decide which can go to the CCC.

“Although I am sure it is not the intention of the committee to impede or obstruct the commission’s investigation, that would be the effect.”

The former judge has no interest in essentially being put on trial by parliament and reportedly told the Attorney-General he would prefer to resign in the long-term interests of the anti-corruption commission.

“It would be wrong for the Commission to be vilified for fearlessly carrying out its functions,” he wrote.

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