A Supreme Court ruling will see a laptop held by the Western Australian parliament released to the Corruption and Crime Commission (CCC) to continue its investigation into allegations of serious misconduct and misuse of taxpayer funded allowance for MPs.
In 2019 disgraced Liberal politician Phil Edman resigned in the wake of revelations that he had spent $78,000 of his tax-payer electoral allowance on speeding fines, visits to a strip club, and interstate trips to visit women for sex.
The legislative council expressed concerns about parliamentary privilege when Edman’s parliamentary laptop and two hard drives were seized by investigators. So the CCC handed the items back, and the WA legislative council president took legal action to clarify the issue.
This week, Supreme Court Justice Stephen Hall handed down a decision that found the vast majority of documents sought by the commission ‘could not attract a reasonable claim of parliamentary privilege on any view’ and that its requests or notices to produce the documents were a valid use of the watchdog’s powers.
Justice Hall said the WA parliament had a ‘lawful obligation’ to produce documents to the CCC that were not privileged, and endorsed the appropriateness of the watchdog’s notices to produce evidence such as the laptop and hard drives.
“The public interest is generally not well served by a dispute between parliament and the executive being aired in a court,” Justice Hall added.
A statement issued by the watchdog welcomed the decision and acknowledged that it was a matter for parliament or the courts to determine whether evidence was subject to privilege.
Hall’s decision clarified that parliamentary privilege was not concerned with maintaining confidentiality (like legal professional privilege) and that it could be disclosed to authorities like the CCC without the ‘prohibited use of the documents’.
“[This] brings to a conclusion the long-running dispute between the president of the legislative council of Western Australia and the Corruption and Crime Commission,” the CCC statement read.
“It is now time to move ahead, with the clarity and direction provided by Justice Hall.”
The watchdog said it expected the laptop and hard drives, which have been held by the WA parliament for two years, would be made available for it to finalise its investigation.
The CCC has published two interim reports into this corruption probe to date, identifying significant serious misuse of $7.5 million in annual electoral allowances paid to WA parliamentary members.
Justice Hall’s judgment unpacked the disputes that were ignited between the CCC, the legislative council and the WA director-general of the Department of Premier and Cabinet (DPC) over the material being requested. It also underscored the challenge of decision-making in the absence of a formal protocol (which other states have) for requests of this kind.
Hall found that public servants from the WA state solicitor’s office (SSO) advising the director-general on what was or was nor parliamentary privilege was an informal process that ran the significant risk of differing opinions, and ultimately drew the ire of the WA president of the legislative council.
“Efforts were made by the relevant parliamentary presiding officer, the president of the legislative council, and the CCC to agree a procedure for the determination of privilege in respect of the emails,” Hall said.
“Those efforts failed and the recipient of the notices, the government department referred to earlier, then took advice from the SSO and established its own procedure.
“After purporting to make a determination of what emails were the subject of privilege, the SSO then produced the remaining emails to the CCC.
“However, the legislative council did not accept that this determination was proper and authorised the president to commence these proceedings to challenge the validity of the notices and the lawfulness of the receipt of the emails.”
Commissioner John McKechnie QC has arranged to meet with WA’s legislative council president and the speaker of the legislative assembly to establish a protocol for handling similar investigations in the future. The CCC has also contacted WA commissioner of police Chris Dawson for his involvement.