STANDING COMMITTEE ON
PROCEDURE AND PRIVILEGES — FIFTY-SIXTH REPORT —LEGAL ADVICE
992. Hon MICHAEL MISCHIN to the Leader of the House
representing the Premier:
I refer to the Leader of the House's
comments on 5 September 2019 in the course of debate on the fifty-sixth report
of the Legislative Council's Standing Committee on Procedure and
Privileges.
(1) Is it the
view of the Premier and his government that the standing committee should
produce and table the legal advice it received supporting the recommendations
made in its report?
(2) If yes to
(1), will the Premier table the legal advice that the government received in
support of the government's position as expressed by the Leader of the
House; and, if not, why not?
(3) What is the
Premier's rationale for Parliament disclosing its legal advice while
the government keeps secret the advice it has received?
Hon SUE
ELLERY replied:
I thank the honourable member for
some notice of the question.
(1) The member
will be aware that in its fifty-fifth report, the Standing Committee on
Procedure and Privileges recommended that this house make a number of orders,
including orders that purported to prevent the director general of the
Department of the Premier and Cabinet from producing documents to the
Corruption and Crime Commission, or any other investigative agency, in response
to any compulsory process. The house proceeded to make that order, despite the
Leader of the House specifically pointing out that the order was beyond the
power of the committee and beyond the power of the house and despite the Leader
of the House having questioned why the legal advice had been summarised and not
annexed as per what the Leader of the House understood to be the usual
practice.
In its fifty-sixth report, the
standing committee conceded that order 4, which was made in response to the recommendations in the fifty-fifth report, was
unlawful. That concession was based on advice received from Mr Chris
Zelestis, QC. In light of the standing committee making recommendations that
were unlawful, the Leader of the House
expressed grave concerns as to the lawfulness of the new recommendations.
In those circumstances, it was entirely appropriate for the Leader of the House
to ask for the legal advice upon which it was relying to be tabled, more so
when the Legislative Council was being asked by the standing committee to
support a recommendation to commence proceedings, and therefore expend
taxpayers' money, against unnamed parties, seeking unnamed relief, at
an unnamed cost and all in circumstances in which the prospects of success of
any such litigation was unknown.
(2) No. The
government, through the Leader of the House, had not recommended that the
Legislative Council adopt an unlawful recommendation—that is,
recommendation/order 2.
Hon Michael
Mischin interjected.
Hon SUE ELLERY: Madam
President, I do not have the capacity to respond to interjections today. I am
sorry about that. The answer continues —
Indeed, the government in the
Legislative Council voted against it. The government was not advancing
recommendations that were completely unprecedented in nature by asking the
Legislative Council to vote for a recommendation, or series of recommendations,
that had the potential to be unlawful.
(3) The rationale is plain and is
set out in part (2).