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Report Details


Committee Name:

Select Committee of Privilege on a Matter Arising in the Standing Committee on Estimates and Financial Operations

House:

Legislative Council
Report Type:Report

Title:

Report
No of Pages:496
Physical Location:Legislative Council Committee Office

Presentation Date:

11/13/2007


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Hide details for Executive SummaryExecutive Summary
1 The Committee has identified that there were a number of unauthorised disclosures, from separate sources, between 30 October 2006 and 1 February 2007 of the deliberations of the Standing Committee on Estimates and Financial Operations in relation to a proposed inquiry into the State’s iron ore industry.
2 The Committee has concluded that each and every one of these unauthorised disclosures was as a result of a strategy devised and implemented by the directors of Cazaly Resources Limited, their lawyers and consultants, for the purpose of using the proceedings of the Standing Committee on Estimates and Financial Operations to influence legal proceedings then on foot before the Court of Appeal of the Supreme Court of Western Australia in relation to the Shovelanna iron ore mining tenement.
3 Specifically the strategy involved using the Standing Committee on Estimates and Financial Operations to establish an inquiry into the State’s iron ore policy, not primarily for the purposes of the inquiry itself, but for the purpose of:
a) using the inquiry to influence or persuade Rio Tinto Limited to settle the dispute over the Shovelanna tenement on terms favourable to Cazaly Resources Limited by:
          - calling or threatening to call as witnesses Rio Tinto Limited executives for questioning before the Standing Committee on Estimates and Financial Operations and publicly embarrassing them; and
          - uncovering useful documents and/or evidence to assist in the Supreme Court appeal against former Minister Bowler’s decision on the Shovelanna tenement;
b) using the inquiry to influence or persuade the State Government (Minister) to accede to or to facilitate the settlement of the dispute over the Shovelanna tenement on terms favourable to Cazaly Resources Limited by:
          - calling or threatening to call as witnesses senior public servants, and Ministers for questioning before the Standing Committee on Estimates and Financial Operations and publicly embarrassing them; and

          - uncovering useful documents and/or evidence to assist in the Supreme Court appeal against former Minister Bowler’s decision on the Shovelanna tenement;
c) influencing the outcome of the legal proceedings then on foot before the Court of Appeal of the Supreme Court of Western Australia against former Minister Bowler’s decision on the Shovelanna dispute by:
        - stirring up public support for Cazaly Resources Limited;
          - attempting to circumvent the sub judice rule by taking active steps to disguise the fact that Cazaly Resources Limited was promoting the proposed inquiry into the State’s iron ore policy; and
          - uncovering useful documents/and or evidence in the Standing Committee on Estimates and Financial Operations proceedings to assist in the Supreme Court appeal; and
d) discrediting the State’s iron ore policy so that the policy could not and would not be relied on by the Minister in the event that the Supreme Court sent the matter back to the Minister for a fresh decision.
4 Central to the successful execution of the strategy was the influencing of at least two Members of the Standing Committee on Estimates and Financial Operations in the performance of their duties as committee Members for the improper purposes of:
obtaining knowledge of the confidential deliberations of the Standing Committee on Estimates and Financial Operations (unauthorised disclosures); and
influencing the proceedings of the Standing Committee on Estimates and Financial Operations - in particular, the calling of witnesses, the examination of witnesses, the content of the Standing Committee on Estimates and Financial Operations inquiry report, and any findings and recommendations - as required dependent on whether or not a settlement in the legal proceedings was achieved.
5 The Committee observes that the strategy was devised and implemented principally by Mr Brian Burke and Mr Julian Grill on the authority of Mr Nathan McMahon, Managing Director, Cazaly Resources Limited and Mr Clive Jones, Joint Managing Director, Cazaly Resources Limited.
6 The attempt to use the proceedings of the Standing Committee on Estimates and Financial Operations for an improper purpose has significant implications for the Legislative Council committee system.
7 As a result of approaches made, as part of the above-mentioned strategy, to the following three Members of the five Member Standing Committee on Estimates and Financial Operations:
Hon Shelley Archer MLC;
Hon Anthony Fels MLC; and
Hon Giz Watson MLC,
      a series of unauthorised disclosures were made which singularly and as a group, either interfered with, or were likely to interfere with, the proper functioning of the Standing Committee on Estimates and Financial Operations.
8 The Committee has identified unauthorised disclosures from the Standing Committee on Estimates and Financial Operations, of varying degrees of seriousness, by Hon Shelley Archer MLC, Hon Anthony Fels MLC, Mr Brian Burke, Mr Noel Crichton-Browne, Mr Robert Edel, Mr Alex Jones, Ms Philippa Reid and Hon Giz Watson MLC. The most serious of these unauthorised disclosures were by Hon Shelley Archer MLC and Hon Anthony Fels MLC.
9 Shortly after embarking upon this inquiry it became readily apparent that this was potentially one of the most important and challenging inquiries in the history of the Legislative Council.
10 The importance of this inquiry arose not only because it is by a select committee of privilege dealing with a suspected breach of one of the oldest and most important rules of the Parliament - that of the confidentiality of the proceedings of parliamentary committees behind closed doors. Beyond this fact, the Committee’s inquiry has broken new ground in a number of respects.
11 In addition to relevant documents and oral testimony, the Committee has received evidence of a nature not usually available to parliamentary committees. It has been provided with extensive audio intercept and surveillance evidence that has been gathered by the Corruption and Crime Commission of Western Australia. It is exceptionally rare that in cases of the unauthorised disclosure of parliamentary committee proceedings that the Parliament has access to such clear evidence of who committed an unauthorised disclosure and the exact time and date when that disclosure took place. In gaining access to such evidence, it also left the Committee with the problem of dealing with conflicting and, in several cases, obviously false evidence.
12 The issue of false evidence to the Committee was a difficult one. It is the Committee’s view that the contempts committed by way of false evidence to the Committee were, in most instances, more serious in their nature and impact than the original breaches of privilege and contempts which were the subject matter of the Committee’s inquiry. As the false evidence contempts arose during the course of the inquiry, the Committee has itself assessed them and makes recommendations to the House as to appropriate penalties.
13 In its second round of hearings (September-October 2007), the Committee engaged counsel assisting to ask questions on behalf of, and through, the Chairman. Counsel assisting was engaged by the Committee in an attempt to ascertain the truth out of sharply conflicting evidence, and as a response to the fact that key witnesses had the benefit of counsel. During the first round of hearings a number of witnesses were repeatedly interrupting proceedings to obtain advice from their counsel. The Committee formed the view prior to the second round of hearings that, given the nature of the conflicting evidence before it, it was important to have the Committee’s questions asked by a specialist advocate who could maintain a line of questioning on the Chairman’s behalf, whilst the Chairman himself dealt with the numerous procedural objections and points of relevance raised by witnesses.
14 The Committee has sought at every opportunity to adopt standards of natural justice over the course of the inquiry to the extent that such standards are compatible with the constraints applying to a select committee under the Standing Orders of the Legislative Council. The limits imposed by the ‘private evidence’ rules applying to select committees has caused significant practical problems for the Committee in providing witnesses with access to relevant information, and has exposed the Committee to almost constant questioning and objection from witnesses and their legal counsel. Many of the legal counsel advising witnesses were clearly unfamiliar with parliamentary privilege and parliamentary processes.
15 Nevertheless, the Committee is satisfied that it has afforded natural justice to witnesses over the course of this inquiry within the scope available to the Committee.
16 The Committee identified a wide range of contempts both against the Standing Committee on Estimates and Financial Operations and the Committee itself during the course of its inquiry. These contempts varied significantly in their seriousness. The Committee applied the test that to even qualify as a contempt a particular action must have interfered, or been likely to interfere, with the functioning of the Parliament or a parliamentary committee. The Committee formed the view that, based on the past practice of privileges committees of the Legislative Council, the Committee had no flexibility to apply the much higher threshold of “substantial interference” when considering breaches of privilege and contempts that has been expressly adopted by Houses in other jurisdictions.
17 The Committee has reported all identified disclosures of the proceedings of the Standing Committee on Estimates and Financial Operations in relation to a proposed inquiry into the State’s iron ore industry. Each of these disclosures is a breach of privilege and a contempt of Parliament. In reporting all such instances of disclosure, the Committee noted the comments of a previous select committee of privilege of the Legislative Council that:
          “Because a contempt can be committed regardless of a person’s intent (or lack of it), the penalty imposed is the appropriate means for the House to indicate how serious it takes it to be. Customarily, an unintended or technical contempt is excused without penalty.” Western Australia, Legislative Council, Select Committee of Privilege on a Failure to Produce Documents under Summons, Report, 8 December 1998, p7.
18 The Committee has considered appropriate penalties for some quite serious contempts of Parliament, but has been frustrated by unclear and inadequate definitions of the Legislative Council’s punitive powers in the Parliamentary Privileges Act 1891. The Committee considers this unacceptable, and has recommended urgent action by the Legislative Council to expand (or clarify) the punitive powers of the Legislative Council.
19 The Committee received extensive procedural and legal advice from the former Clerk Assistant (House), Mr Nigel Pratt, the former Clerk of the Legislative Council, Ms Mia Betjeman, the current Clerk of the Legislative Council, Mr Malcolm Peacock and the Clerk Assistant (Committees), Mr Paul Grant. Barrister Mr Peter Quinlan also provided a legal opinion on the evidence provided by the CCC. Mr Philip Urquhart acted as counsel assisting the Committee in the second round of hearings. The Committee thanks these individuals for their assistance.
20 The Committee thanks Hansard for their services, which was made all the more difficult for them by the restrictions placed on their access to the Committee’s documents.
21 The Committee thanks the staff of the Parliament House Library for locating a number of ancient and obscure committee reports and articles.
22 The Committee expresses gratitude to the Members and staff of the Standing Committee on Estimates and Financial Operations for co-operating with the Committee over the course of the inquiry.
23 Finally, the Committee thanks its staff for their work over the course of the inquiry.
24 As the Committee is a select committee, and so will cease to exist upon reporting to the Parliament, the Committee has endeavoured to provide as much detail in this report as possible about the Committee’s evidence and procedures and any issues that arose in the course of the inquiry. It is hoped that this detail will assist in addressing any questions that may be raised about the Committee’s approach to the inquiry, and facilitate as full a debate as possible in the House on this report.

Observations, Findings and Recommendation

25 The Committee makes the following observations, findings and recommendations arising from identified disclosures of the deliberations of the Standing Committee on Estimates and Financial Operations relating to a proposed inquiry into the State’s Iron Ore industry:
26 Recommendations are grouped as they appear in the text at the page number indicated:

Observation 1

The Committee notes that while there may not have been a written contract between Cazaly Resources Limited, Mr Brian Burke and Mr Julian Grill, the evidence suggests that there was at least a verbal arrangement in place for the payment of a success fee.

The Committee could not take this observation to a finding, but is of the view that there is strong circumstantial evidence that there was a success fee arrangement in place. In the Committee’s view this constitutes an engagement.

Finding 1

The Committee finds that Mr Nathan McMahon gave a false answer to a question asked by the Committee during a hearing.

The Committee finds that this false answer is a contempt of Parliament.


Page 101

    Recommendation 1: The Committee recommends that the Legislative Council order Mr Nathan McMahon to provide an unreserved written apology to the House for giving false evidence to the Committee, and that the apology is to be given within seven days of the order of the House.

Page 101
    Recommendation 2: The Committee recommends that the Legislative Council direct the Attorney General pursuant to section 15 of the Parliamentary Privileges Act 1891 to assess the false evidence given to the Committee by Mr Nathan McMahon so as to determine whether to conduct a prosecution under section 57 of the Criminal Code.

Observation 2

The Committee observes that there were a number of disclosures from separate sources of the deliberations of the Standing Committee on Estimates and Financial Operations relating to a proposed inquiry into the State’s iron ore policy between 30 October 2006 and 31 January 2007, each of which was a breach of privilege and a contempt of the Parliament (the particulars of which are set out in the following findings in this report) and each of which resulted from a strategy to use the proceedings of the Standing Committee on Estimates and Financial Operations for improper purposes.

Specifically the strategy involved using the Standing Committee on Estimates and Financial Operations to establish an inquiry into the State’s iron ore policy, not primarily for the purposes of the inquiry itself, but for the purpose of:

a) using the inquiry to influence or persuade Rio Tinto Limited to settle the dispute over the Shovelanna tenement on terms favourable to Cazaly Resources Limited by:

          - calling or threatening to call as witnesses Rio Tinto Limited executives for questioning before the Standing Committee on Estimates and Financial Operations and publicly embarrassing them; and
          - uncovering useful documents and/or evidence to assist in the Supreme Court appeal against former Minister Bowler’s decision on the Shovelanna tenement;
b) using the inquiry to influence or persuade the State Government (Minister) to accede to or to facilitate the settlement of the dispute over the Shovelanna tenement on terms favourable to Cazaly Resources Limited by:
          - calling or threatening to call as witnesses senior public servants, and Ministers for questioning before the Standing Committee on Estimates and Financial Operations and publicly embarrassing them; and

          - uncovering useful documents and/or evidence to assist in the Supreme Court appeal against former Minister Bowler’s decision on the Shovelanna tenement;
c) influencing the outcome of the legal proceedings then on foot before the Court of Appeal of the Supreme Court of Western Australia against former Minister Bowler’s decision on the Shovelanna dispute by:
        - stirring up public support for Cazaly Resources Limited;
          - attempting to circumvent the sub judice rule by taking active steps to disguise the fact that Cazaly Resources Limited was promoting the proposed inquiry into the State’s iron ore policy; and
          - uncovering useful documents/and or evidence in the Standing Committee on Estimates and Financial Operations proceedings to assist in the Supreme Court appeal; and
d) discrediting the State’s iron ore policy so that the policy could not and would not be relied on by the Minister in the event that the Supreme Court sent the matter back to the Minister for a fresh decision.

Central to the successful execution of the strategy was the influencing of at least two Members of the Standing Committee on Estimates and Financial Operations in the performance of their duties as committee Members for the improper purposes of obtaining knowledge of the confidential deliberations of the Standing Committee on Estimates and Financial Operations (unauthorised disclosures) and influencing the proceedings of the Standing Committee on Estimates and Financial Operations (in particular, the calling of witnesses, the examination of witnesses, the content of the Standing Committee on Estimates and Financial Operations inquiry report, its findings and recommendations), as required dependent on whether or not a settlement in the legal proceedings was achieved.

The Committee observes that the strategy was devised and implemented principally by Mr Brian Burke and Mr Julian Grill on the authority of Mr Nathan McMahon, Managing Director, Cazaly Resources Limited and Mr Clive Jones, Joint Managing Director, Cazaly Resources Limited.

The Committee further observes that a number of Cazaly Resources Limited and Echelon Resources Limited consultants and lawyers and Echelon Resources Limited directors had varying degrees of involvement in the development and/or implementation of the strategy (or parts of the strategy), including Mr Robert Edel, Partner, DLA Phillips Fox; Mr Alex Jones, Senior Associate, DLA Phillips Fox; Mr Peter Clough, Mining Consultant for Cazaly Resources Limited; Mr David Tasker, Account Manager, Professional Public Relations; Mr Matthew Rimes, then Managing Director of Echelon Resources Limited; and others unknown.

The Committee notes that a number of people were involved at varying degrees in the implementation of the strategy and, based on the evidence before the Committee, without knowledge of the full details of the strategy and its true purpose, including Mr Noel Crichton-Browne, Lobbyist for Cazaly Resources Limited; Dr Walawski, Chief Executive, the Association of Mining and Exploration Companies Inc.; Mr Ian Loftus, Policy and Public Affairs Manager, the Association of Mining and Exploration Companies Inc.; and Mr Malcolm McCusker QC, Barrister.

The Committee observes that Hon Shelley Archer MLC and Hon Anthony Fels MLC were not informed as to the full details of the strategy and its true purpose. Further, the Committee notes that the participants deliberately concealed or down-played the fact that they were acting on behalf of Cazaly Resources Limited and Echelon Resources Limited and concealed that the true purpose of the proposed inquiry was to assist Cazaly Resources Limited and Echelon Resources Limited to obtain a commercially favourable outcome in the Shovelanna dispute.

The Committee notes that a mere intention to have the State’s iron ore policy investigated and discredited is not, of itself an improper motive for referring a matter to a parliamentary committee for inquiry. Such inquiries are regularly conducted by parliamentary committees, and they are an important mechanism by which members of the public may legitimately initiate a review of the actions and policies of the Executive.

Finding 2

The Committee finds that on 30 October 2006 at approximately 5:30pm Hon Shelley Archer MLC disclosed to Mr Brian Burke in a telephone conversation the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on that day in relation to a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations.

Relevant portions of the telephone conversation between Hon Shelley Archer MLC and Mr Brian Burke at 5:30pm on 30 October 2006 are set out at paragraph 10.22 of this report.

The specific deliberations disclosed by Hon Shelley Archer MLC were, in effect, that:

      a) Hon Anthony Fels MLC had proposed an inquiry into the State’s iron ore industry at that day’s SCEFO meeting;

      b) Hon Ken Travers MLC was opposed to the proposed inquiry;

      c) Hon Giz Watson MLC wanted to look at the proposal before she agreed with it;

      d) Hon Anthony Fels MLC had not discussed the proposed inquiry with Hon Nigel Hallett MLC before proposing it;

e) Hon Shelley Archer MLC had referred to the ‘Cazaly decision’;
f) Hon Nigel Hallett MLC had indicated support for the inquiry;
g) Hon Ken Travers MLC was going to discuss the proposed inquiry with Mr John Bowler MLA, Minister for Resources Assisting the Minister for State Development;
h) the Standing Committee on Estimates and Financial Operations was divided on the question as to whether to proceed with the proposed inquiry, with three Members for and two Members against;
i) Hon Shelley Archer MLC and Hon Anthony Fels MLC both wanted the proposed inquiry placed on the agenda for the next meeting of the Standing Committee on Estimates and Financial Operations, but that the committee’s staff had advised that it be placed on the agenda for the meeting of 13 December 2006 instead;
j) Hon Anthony Fels MLC had stated that if the proposal was agreed to on 13 December 2006 the inquiry could be advertised for public submissions over the Christmas period, stakeholders could then be written to, and hearings could commence in March 2007;
k) Hon Ken Travers MLC had suggested to Hon Anthony Fels MLC that Hon Anthony Fels MLC obtain a briefing from Mr John Bowler MLA, Minister for Resources Assisting the Minister for State Development, and that Hon Shelley Archer MLC had shaken her head to Hon Anthony Fels MLC as a signal of opposition to this suggestion;
l) Hon Shelley Archer MLC had told the Standing Committee on Estimates and Financial Operations that she supported the proposed inquiry; and
m) Hon Anthony Fels MLC had insisted that the Standing Committee on Estimates and Financial Operations consider the proposed inquiry at its meeting on 13 December 2006.

The Committee further finds that this disclosure interfered with the functioning of the Standing Committee on Estimates and Financial Operations by breaching the confidence and mutual trust of the committee. The disclosure exposed other Members of the committee to influence by third parties.

The Committee finds that this disclosure is a breach of privilege and a contempt of Parliament.



Page 199

    Recommendation 3: The Committee recommends that the Legislative Council order the following by way of penalty for the breach of privilege and contempt committed by Hon Shelley Archer MLC, being the unauthorised disclosure of the deliberations of the Standing Committee on Estimates and Financial Operations in relation to a proposed inquiry into the State’s iron ore industry:

that the Member be disqualified from membership of any parliamentary committee for the remainder of the session;
that the Member undergo further induction training from the Clerk of the Legislative Council on parliamentary privilege, and that the Clerk report to the House on the completion of such training; and
that the Member make an unreserved apology to the Legislative Council whilst standing in her place in the House, within seven days of the order of the House.


Finding 3

The Committee finds that there were inconsistencies in the evidence given by Hon Shelley Archer MLC in her four appearances before the Committee.

The Committee further finds that Hon Shelley Archer MLC gave false answers to questions asked by the Committee during hearings.

The Committee finds that these false answers are a contempt of Parliament.



Page 213

    Recommendation 4: The Committee recommends that the Legislative Council order Hon Shelley Archer MLC to make an unreserved apology while standing in her place in the House in relation to her false evidence to the Committee, and that such an apology is to be given within seven days of the order of the House.

Page 213
    Recommendation 5: The Committee recommends that the Legislative Council direct the Attorney General pursuant to section 15 of the Parliamentary Privileges Act 1891 to assess the false evidence given to the Committee by Hon Shelley Archer MLC so as to determine whether to conduct a prosecution under section 57 of the Criminal Code.

Observation 3

The Committee brings to the attention of the House a possible further contempt of Parliament in the following statement by Hon Shelley Archer MLC to the Legislative Council in the Adjournment Debate on Tuesday, 20 March 2007 (Hansard, p301), which was false:

          “… in my dealings with the committees I have at all times conducted myself properly and according to parliamentary standing orders.” Hon Shelley Archer MLC, Western Australia, Legislative Council, Parliamentary Debates (Hansard), 20 March 2007, p301.
The Standing Orders of the Legislative Council do not exist in isolation. They must be read in the context of, and often subject to, custom and usage and the other written and unwritten rules of the House.

The Committee notes that Hon Shelley Archer MLC’s statement to the House was contrary to the clear evidence of her disclosure of the confidential deliberations of the Standing Committee on Estimates and Financial Operations in the CCC telephone intercept of a telephone conversation between Hon Shelley Archer MLC and Mr Brian Burke at 5:26pm on 30 October 2006, the relevant portions of which are set out at paragraph 10.22 of this report.

Finding 4

The Committee finds that on 30 October 2006 at approximately 6:50pm Hon Anthony Fels MLC disclosed to Mr Noel Crichton-Browne in a telephone conversation the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on that day in relation to a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations

The disclosure interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee.

The telephone conversation is set out in a CCC telephone intercept transcript (see paragraph 11.14 of this report).

The specific deliberations disclosed by Hon Anthony Fels MLC were, in effect, that:

a) Hon Anthony Fels MLC had raised the proposed inquiry and placed the proposal on the agenda for the next meeting, but had not distributed the terms of reference;
b) Hon Ken Travers MLC wanted to talk to Mr John Bowler MLA, Minister for Resources Assisting the Minister for State Development, about the proposed inquiry; and
c) Hon Ken Travers MLC had expressed the view that there had already been a couple of inquiries into the issues raised by the proposed inquiry.

This disclosure is a breach of privilege and a contempt of Parliament.

Finding 5

The Committee finds that on 13 December 2006 at approximately 2:30pm Hon Anthony Fels MLC disclosed to Mr Noel Crichton-Browne in a telephone conversation the deliberations of meetings of the Standing Committee on Estimates and Financial Operations held on 30 October 2006 and 4 December 2006 in relation to a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations

The disclosure interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee.

The telephone conversation is set out in a CCC telephone intercept transcript (see paragraph 11.24 of this report).

The specific deliberations disclosed by Hon Anthony Fels MLC arising from the 30 October 2006 meeting of the Standing Committee on Estimates and Financial Operations were, in effect, that:

      a) there was only one Member of the committee, being a Government Member, who didn’t want to undertake the inquiry;

      b) Hon Giz Watson MLC did not seem to have too much of a problem with the proposed inquiry; and

      c) some of Members of the committee were happy for him to put the proposed inquiry to the committee.

The specific deliberations disclosed by Hon Anthony Fels MLC arising from the 4 December 2006 meeting of the Standing Committee on Estimates and Financial Operations were, in effect, that:
      d) there had been “some discussion around the community about … the fact that we’re going to be doing an enquiry …”.
This disclosure is a breach of privilege and a contempt of Parliament.

Finding 6

The Committee finds that on 30 January 2007 at approximately 12:55pm Hon Anthony Fels MLC disclosed to Mr Noel Crichton-Browne in a telephone conversation the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on 13 December 2006 in relation to a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations.

The disclosure interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee.

The telephone conversation is set out in a CCC telephone intercept transcript (see paragraph 11.30 of this report).

The specific deliberations disclosed by Hon Anthony Fels MLC were, in effect, that:

      a) the proposed iron ore inquiry was on the agenda for a meeting scheduled for 31 January 2007;

      b) the committee had written a letter off to find out what the State Government’s iron ore policy is;

      c) following Hon Anthony Fels MLC’s discussions with Mrs Lisa Peterson, the committee’s Advisory Officer (General), it was likely that Ms Lisa Peterson was going to provide advice to the committee at its next meeting that the draft terms of reference for the proposed inquiry presented by Hon Anthony Fels MLC were too broad for the committee to look at.

This disclosure is a breach of privilege and a contempt of Parliament.

The Committee further notes that it is clear in this conversation that Hon Anthony Fels MLC was aware of the confidentiality of committee proceedings, as he stated the following to Mr Crichton-Browne:

          “… whatever comes before a committee is confidential to the committee until it is made public now. … Because … you’ve brought the issue to me. … I’m not telling you what’s going on in the committee … but I’m talking about the issues.”

Finding 7

The Committee finds that on 1 February 2007 at approximately 2:00pm Hon Anthony Fels MLC disclosed to Mr Noel Crichton-Browne in a telephone conversation the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on 31 January 2007 in relation to a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations.

The disclosure interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee.

The telephone conversation is set out in a CCC telephone intercept transcript (see paragraph 11.43 of this report).

The specific deliberations disclosed by Hon Anthony Fels MLC were, in effect, that:

      a) the committee was investigating a few legal issues concerning the proposed inquiry;

      b) Hon Anthony Fels MLC had raised the advice he had received from Mr Robert Edel, Partner, DLA Phillips Fox, and that of Mr Malcolm McCusker QC to Mr Edel on the proposed inquiry’s terms of reference, and that that had “raised a couple of eyebrows” in the committee;

      c) there was not enough support in the committee to do what Hon Anthony Fels MLC had proposed to do with the draft terms of reference;

      d) the committee had considered a proposal that was something less than the draft terms of reference, which was basically just to look at iron ore royalties;

      e) Hon Anthony Fels MLC could get support within the committee for an inquiry into iron ore royalties, but he didn’t think such a limited inquiry was worth pushing for;

      f) Hon Nigel Hallett MLC was not helpful to Hon Anthony Fels MLC with respect to the proposed inquiry; and

      g) the State Government has no formal iron ore policy - it is based on history and precedents.

This disclosure is a breach of privilege and a contempt of Parliament.

The Committee further notes that it is clear that prior to this telephone conversation Hon Anthony Fels MLC was aware of the confidentiality of committee proceedings, as he stated the following to Mr Crichton-Browne in a telephone conversation on 30 January 2007:

          “… whatever comes before a committee is confidential to the committee until it is made public now. … Because … you’ve brought the issue to me. … I’m not telling you what’s going on in the committee … but I’m talking about the issues.”
Furthermore, during this 1 February 2007 telephone conversation to Mr Crichton-Browne, Hon Anthony Fels MLC stated:
          “Uh yeah uhm okay. … it’s a bit hard to talk about where we’re at but uhm. … but uh I’m still trying to get something done. … And uh that’s about all I can sorta let you know about at the moment. ... its all uhm nothing’s been published yet.”

Page 268
    Recommendation 6: The Committee recommends that the Legislative Council order the following by way of penalty for the breaches of privilege and contempts committed by Hon Anthony Fels MLC:

that the Member be disqualified from membership of any parliamentary committee for the remainder of the session;
that the Member undergo further induction training from the Clerk of the Legislative Council on parliamentary privilege, and that the Clerk report to the House on the completion of such training; and
that the Member make an unreserved apology to the Legislative Council whilst standing in his place in the House, within seven days of the order of the House.

Finding 8

The Committee finds that there were inconsistencies between the evidence given by Hon Anthony Fels MLC and the CCC audio intercept evidence in his two appearances before the Committee.

The Committee further finds that Hon Anthony Fels MLC gave false answers to questions asked by the Committee during hearings.

The Committee finds that these false answers are a contempt of Parliament.



Page 273

    Recommendation 7: The Committee recommends that the Legislative Council order Hon Anthony Fels MLC to make an unreserved apology while standing in his place in the House in relation to his false evidence to the Committee, and that such an apology is to be given within seven days of the order of the House.

Page 273
    Recommendation 8: The Committee recommends that the Legislative Council direct the Attorney General pursuant to section 15 of the Parliamentary Privileges Act 1891 to assess the false evidence given to the Committee by Hon Anthony Fels MLC so as to determine whether to conduct a prosecution under section 57 of the Criminal Code.

Finding 9

The Committee finds that on 30 October 2006 at 5:40pm Mr Brian Burke made a ‘secondary’ disclosure by email to a group of individuals, being: Mr Alex Jones, Senior Associate, DLA Phillips Fox; Mr Robert Edel, Partner, DLA Phillips Fox; Mr Peter Clough, Consultant; Mr Julian Grill; Mr Eddie Rigg, Argonaut Limited; Ms Ainslie Chandler, Professional Public Relations (WA); Mr David Tasker, Account Manager, Professional Public Relations (WA); Mr Matthew Rimes, Managing Director, Echelon Resources Limited; Mr Nathan McMahon, Managing Director, Cazaly Resources Limited; and Mr Clive Jones, Joint Managing Director (Technical and Operational), Cazaly Resources Limited, of a disclosure Mr Burke had received from Hon Shelley Archer MLC of the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on that day in relation to a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations.

The disclosure interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee and further disclosing confidential committee deliberations to a wider group of people.

The specific deliberations disclosed by Mr Burke were that:

          “The Parliamentary Committee met today and discussed a proposed inquiry. The final decision about proceeding will not be made until December.”
This disclosure is a breach of privilege and a contempt of Parliament.


Page 306

    Recommendation 9: The Committee recommends that the Legislative Council impose no penalty against Mr Brian Burke for his secondary unauthorised disclosure of the deliberations of the Standing Committee on Estimates and Financial Operations by email of 30 October 2006, it being a contempt of a minor nature.

Finding 10

The Committee finds that on 1 November 2006 at approximately 12:50pm Mr Brian Burke made a ‘secondary’ disclosure to:

Mr Julian Grill;
Mr Nathan McMahon, Managing Director, Cazaly Resources Limited;
Mr Clive Jones, Joint Managing Director (Technical and Operational), Cazaly Resources Limited;
Mr Alex Jones, Senior Associate, DLA Phillips Fox;
Mr Robert Edel, Partner, DLA Phillips Fox; and
perhaps others,

at a meeting at Mr Julian Grill’s home of a disclosure Mr Burke had received from Hon Shelley Archer MLC of the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on 30 October 2006 in relation to a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations

The disclosure interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee, and by further disclosing confidential committee deliberations to a wider group of people.

The relevant portions of the meeting are set out in a CCC audio intercept transcript (see paragraph 12.16 onwards in this report).

The specific deliberations disclosed by Mr Burke were, in effect, that:

a) Hon Ken Travers MLC was going to see Mr John Bowler MLA, Minister for Resources Assisting the Minister for State Development;
b) Hon Ken Travers MLC objected to the proposed inquiry;
c) Hon Ken Travers MLC told Hon Shelley Archer MLC to go and get a briefing from Mr John Bowler MLA, Minister for Resources Assisting the Minister for State Development;
d) Hon Anthony Fels MLC put up the proposed inquiry but did not speak to Hon Nigel Hallett MLC;
e) Hon Shelley Archer MLC spoke to Hon Nigel Hallett MLC and that it appeared that three members of the committee were in favour of the proposed inquiry;
f) Hon Giz Watson MLC was “in two minds” about the proposed inquiry;
g) Hon Anthony Fels MLC proposed the inquiry and Hon Shelley Archer MLC supported it strongly;
h) a decision will be made at a meeting in December;
i) Hon Giz Watson MLC was quite open but didn’t express a view one way or the other - just a view that she needed to find out more about it; and
j) Hon Shelley Archer MLC said to the committee that the proposed inquiry is about the confiscation of Cazaly’s rights.

This disclosure is a breach of privilege and a contempt of Parliament.


Page 307

    Recommendation 10: The Committee recommends that the Legislative Council order Mr Brian Burke to provide an unreserved written apology to the Legislative Council for the secondary unauthorised disclosure on 1 November 2006 of the confidential deliberations of the Standing Committee on Estimates and Financial Operations, and that the apology be given within seven days of the order of the House.


Finding 11

The Committee finds that there were inconsistencies in the evidence given by Mr Brian Burke in his two appearances before the Committee.

The Committee further finds that Mr Brian Burke gave false answers to questions asked by the Committee during hearings.

The Committee finds that these false answers are a contempt of Parliament.



Page 311

    Recommendation 11: The Committee recommends that the Legislative Council order Mr Brian Burke to provide an unreserved written apology to the House for giving false evidence to the Committee, and that the apology be given within seven days of the order of the House.

Page 311
    Recommendation 12: The Committee recommends that the Legislative Council direct the Attorney General pursuant to section 15 of the Parliamentary Privileges Act 1891 to assess the false evidence given to the Committee by Mr Brian Burke so as to determine whether to conduct a prosecution under section 57 of the Criminal Code.


Finding 12

The Committee finds that on 30 January 2007 at approximately 2:15pm Mr Noel Crichton-Browne made a ‘secondary’ disclosure in a telephone conversation with Mr Robert Edel, Partner, DLA Phillips Fox, of a disclosure Mr Crichton-Browne had received from Hon Anthony Fels MLC of the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on 4 December 2006 in relation to a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations

The disclosure interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee and further disclosing the confidential information to a wider number of people.

The telephone conversation is set out in full in a CCC telephone intercept (see paragraph 13.20 of this report).

The specific deliberations disclosed by Mr Crichton-Browne were, in effect, that there had been a “hiccup” because the Association of Mining and Exploration Companies Inc. (AMEC) had written to the committee chairman saying that AMEC understood that the committee was looking at the proposed inquiry, and that the AMEC letter had caused “some considerable heartburn” because committees deliberate in camera.

The Committee further notes that immediately prior to the secondary disclosure by Mr Crichton-Browne, Hon Anthony Fels MLC had advised Mr Crichton-Browne of the confidentiality of committee proceedings in a telephone conversation on 30 January 2007, when he stated:

          “… whatever comes before a committee is confidential to the committee until it is made public now. … Because … you’ve brought the issue to me. … I’m not telling you what’s going on in the committee … but I’m talking about the issues.”
This disclosure is a breach of privilege and a contempt of Parliament.



Page 329

    Recommendation 13: The Committee recommends that the Legislative Council order Mr Noel Crichton-Browne to provide an unreserved written apology to the Legislative Council for the secondary unauthorised disclosure on 30 January 2007 of the deliberations of the Standing Committee on Estimates and Financial Operations, and that the apology be given within seven days of the order of the House.


Finding 13

The Committee finds that there were inconsistencies in the evidence given by Mr Noel Crichton-Browne in his two appearances before the Committee.

The Committee further finds that Mr Noel Crichton-Browne gave false answers to questions asked by the Committee during a hearing.

The Committee finds that these false answers are a contempt of Parliament.


Page 333

    Recommendation 14: The Committee recommends that the Legislative Council order Mr Noel Crichton-Browne to provide an unreserved written apology to the House for giving false evidence to the Committee, and that the apology be given within seven days of the order of the House.

Page 333
    Recommendation 15: The Committee recommends that the Legislative Council direct the Attorney General pursuant to section 15 of the Parliamentary Privileges Act 1891 to assess the false evidence given to the Committee by Mr Noel Crichton-Browne so as to determine whether to conduct a prosecution under section 57 of the Criminal Code.


Finding 14

The Committee finds that on 6 November 2006 Mr Robert Edel, Partner, DLA Phillips Fox, and Mr Alex Jones, Senior Associate, DLA Phillips Fox, made a ‘tertiary’ disclosure to Dr Justin Walawski, Chief Executive, Association of Mining and Exploration Companies Inc (AMEC), at AMEC’s offices at 25 Richardson Street, West Perth, of a disclosure by Hon Shelley Archer MLC to Mr Brian Burke in a telephone conversation on 30 October 2006, and relayed to Messrs Edel and Alex Jones by Mr Burke at a meeting on 1 November 2006, of the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on 30 October 2006 in relation to a proposed inquiry into the State’s iron ore industry.

The specific deliberations disclosed by Mr Robert Edel and Mr Alex Jones were, in effect, that the Standing Committee on Estimates and Financial Operations may be considering a review of the state’s iron ore policy.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations

The disclosure was likely to have interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee.

This disclosure is a breach of privilege and a contempt of Parliament.

Finding 15

The Committee finds that on 13 November 2007 at 7:07pm Mr Alex Jones, Senior Associate, DLA Phillips Fox, made a ‘tertiary’ disclosure by email to Dr Justin Walawski, Chief Executive, Association of Mining and Exploration Companies Inc (AMEC), of a disclosure by Hon Shelley Archer MLC to Mr Brian Burke in a telephone conversation on 30 October 2006, and relayed to Mr Alex Jones by Mr Burke at a meeting on 1 November 2006, of the deliberations of a meeting of the Standing Committee on Estimates and Financial Operations held on 30 October 2006 in relation to a proposed inquiry into the State’s iron ore industry.

The specific deliberations disclosed by Mr Alex Jones were, in effect, that:

there is support for the proposed inquiry from a number of Members of the Standing Committee on Estimates and Financial Operations;
Hon Giz Watson MLC is currently undecided and is seeking more information;
the support of Hon Giz Watson MLC is likely to be crucial to the inquiry being taken up by the Standing Committee on Estimates and Financial Operations.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations

The disclosure was likely to have interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee.

This disclosure is a breach of privilege and a contempt of the Parliament.


Page 343

    Recommendation 16: The Committee recommends that no penalty be imposed by the Legislative Council with respect to the unauthorised disclosures of the deliberations of the Standing Committee on Estimates and Financial Operations by Mr Robert Edel and Mr Alex Jones, being a contempt of a minor nature.


Finding 16

The Committee finds that on 30 January 2007 at approximately 4:50pm Ms Philippa Reid, Electorate Officer for Hon Nigel Hallett MLC, disclosed to Mr Noel Crichton-Browne in a telephone conversation the contents of an agenda for a meeting of the Standing Committee on Estimates and Financial Operations scheduled for 31 January 2007, and thereby disclosed the deliberations of the Standing Committee on Estimates and Financial Operations in relation to a proposed inquiry into the State’s iron ore industry.

The telephone conversation is set out in full in CCC telephone intercept transcript at 4:49pm on 30 January 2007 (see paragraph 15.9 of this report).

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations

The disclosure was likely to have interfered with the functioning of the Standing Committee on Estimates and Financial Operations by eroding the confidence and mutual trust amongst the Members of that committee.

The specific deliberations disclosed by Ms Reid were, in effect, that the Standing Committee on Estimates and Financial Operations would, at its scheduled meeting on 31 January 2007, be considering undertaking a number of specified inquiries, including a proposed inquiry into “Western Australia’s iron ore policy”.

This disclosure is a breach of privilege and a contempt of Parliament.



Page 350

    Recommendation 17: The Committee recommends that the Legislative Council impose no penalty against Ms Philippa Reid for her unauthorised disclosure of the deliberations of the Standing Committee on Estimates and Financial Operations, being a contempt of a minor nature.

Finding 17

The Committee finds that on a date unknown in November 2006 Hon Giz Watson MLC disclosed to Mr Robin Chapple the deliberations of the Standing Committee on Estimates and Financial Operations in relation to a proposed inquiry into the State’s iron ore industry.

The specific deliberations disclosed by Hon Giz Watson MLC was the fact that the Standing Committee on Estimates and Financial Operations was considering a proposed inquiry into the State’s iron ore industry.

The disclosure was not authorised by the Standing Committee on Estimates and Financial Operations.

The disclosure was likely to interfere in the functioning of the Standing Committee on Estimates and Financial Operations.

This disclosure is a breach of privilege and a contempt of Parliament.


Page 364

    Recommendation 18: The Committee recommends that the Legislative Council impose no penalty against Hon Giz Watson MLC for her unauthorised disclosure of the deliberations of the Standing Committee on Estimates and Financial Operations, being a contempt of a minor nature.

Finding 18

The Committee finds that the Standing Committee on Estimates and Financial Operations authorised Hon Ken Travers MLC to speak to Hon John Bowler MLA, the then Minister for Resources Assisting the Minister for State Development, on behalf of the committee so as to ascertain whether any similar inquiries to that proposed into the State’s iron ore industry had been previously undertaken.

The Committee finds that such authorisation was given at a meeting of the Standing Committee on Estimates and Financial Operations on either 30 October 2006 or 4 December 2006, with the 30 October 2006 meeting being the most likely.



Page 374

    Recommendation 19: The Committee recommends that the Clerk of the Legislative Council and all Committee Chairs take steps to ensure that Legislative Council committee minutes clearly record any authorisation for a committee Member to disclose the deliberations of the committee, and the precise extent of the permitted disclosure.

Finding 19

The Committee finds that, between 13 June 2007 and 10 September 2007, Mr Julian Grill provided Mr Brian Burke with copies of documents that had been requested of Mr Grill by the Committee in a private hearing, and that Mr Grill had further advised Mr Burke of the fact that those documents had been requested by the Committee.

The provision of the documents and the accompanying disclosure of the private proceedings of the Committee is a breach of privilege and a contempt of the Parliament.



Page 398

    Recommendation 20: The Committee recommends that the Legislative Council order Mr Julian Grill to make an unreserved written apology to the House for the unauthorised disclosure of the Committee’s private proceedings to Mr Brian Burke, and that the apology be provided within seven days of the order of the House.

Page 406
    Recommendation 21: The Committee recommends that the Clerk of the Legislative Council and all Committee Chairs ensure that at any Legislative Council committee hearing, an oath or affirmation is administered to all witnesses.

Page 421
    Recommendation 22: The Committee recommends that the Legislative Council refer to the Procedure and Privileges Committee the urgent examination of the ‘threshold’ test applied by the Australian Senate with respect to the investigation and reporting of suspected breaches of privilege within standing committees, and for that committee to give consideration as to whether it is an approach that should be adopted by the Legislative Council, and to then report its findings to the House.

Page 422
    Recommendation 23: The Committee recommends that the Legislative Council refer to the Procedure and Privileges Committee the consideration of a possible amendment to the Standing Orders of the Legislative Council so as to provide an express provision to the effect that the proceedings of a standing committee of the Legislative Council other than during the public hearing of evidence are not open to the public and remain strictly confidential to the committee, unless the committee authorises publication, or until and to the extent that it reports to the House. A suggested wording for a new Standing Order is set out below:

    With the exception of the taking of evidence in a hearing in public or the granting of leave to another Member to sit in for the purposes of a specific inquiry, the proceedings of a parliamentary committee are conducted behind closed doors and shall be confidential to the committee unless the committee has expressly authorised the disclosure of any documents or information from those proceedings.”


Page 423
    Recommendation 24: The Committee recommends that the Legislative Council request the Attorney General to give consideration to the appropriateness of amending the Parliamentary Privileges Act 1891 so as to provide a second head of power to both Houses of Parliament with the express power to fine, suspend without pay or imprison for any breach of privilege or contempt, and that the Attorney General report back to both Houses.

Page 423
    Recommendation 25: The Committee recommends that the Legislative Council refer to the Procedure and Privileges Committee the consideration of an amendment to the Standing Orders of the Legislative Council to expressly provide for the suspension of a Member without pay, and that the committee report back to the House.

Page 424
    Recommendation 26: The Committee recommends that the Legislative Council refer to the Procedure and Privileges Committee the consideration of an amendment to the Standing Orders of the Legislative Council to implement section 8 of the Parliamentary Privileges Act 1891, and that the committee report back to the House.

Page 424
    Recommendation 27: The Committee recommends that the Attorney General examine the provisions of the Criminal Code relating to offences against the Parliament to establish whether an amendment to the Criminal Code is necessary in order to expressly abrogate parliamentary privilege, and that the Attorney General report back to both Houses.

Page 425
    Recommendation 28: The Committee recommends that the Clerk of the Legislative Council ensure that the staff of the Legislative Council Committee Office no longer fax agendas for committee meetings to Members’ electorate offices. A simple notification of the next committee meeting time and place should instead be either faxed or emailed to remind Members of scheduled committee meetings.

Page 427
    Recommendation 29: The Committee recommends that the Legislative Council refer to the Procedure and Privileges Committee the consideration of an amendment to the Standing Orders of the Legislative Council to expressly provide for the confidential status of deferred items of correspondence and other documents received by a standing committee, and that the committee report back to the House.

Page 427
    Recommendation 30: The Committee recommends that the Legislative Council refer to the Procedure and Privileges Committee the consideration of an assessment as to whether standing committees should continue to have an own motion inquiry power and, if so, the procedure for its use, and that the committee report back to the House.

Page 428
    Recommendation 31: The Committee recommends that the Chairman of Committees and the Clerk of the Legislative Council continue to progress the development of a Committee Members’ Guide for the Members of Legislative Council standing committees.

Page 428
    Recommendation 32: The Committee recommends that the Clerk of the Legislative Council establish a program for the benefit of all Members of regular seminars on parliamentary privilege, providing practical examples and case studies.

Page 428
    Recommendation 33: The Committee recommends that the Clerk of the Legislative Council provide a program of regular seminars on parliamentary privilege for all parliamentary and electorate staff, public servants, and the general public.

Page 428
    Recommendation 34: The Committee recommends that the Clerk of the Legislative Council ensure that all documents sent out by the Legislative Council Committee Office on behalf of a parliamentary committee should contain a confidentiality disclaimer.

Page 430
    Recommendation 35: The Committee recommends that the Legislative Council order the limited disclosure or publication of the evidence received by the Committee to the extent necessary or expedient so as to enable the Attorney General to assess any false evidence given to the Committee and to conduct any prosecutions under section 57 of the Criminal Code.