JENKINS and MCCUSKER
[2010] WASAT 100
•12 JULY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: JENKINS and MCCUSKER [2010] WASAT 100
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 12 JULY 2010
FILE NO/S: VR 185 of 2009
BETWEEN: RONALD FRANK JENKINS
Applicant
AND
MALCOLM MCCUSKER
First RespondentLEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Second Respondent
Catchwords:
Legal Profession - Allegation of professional misconduct or unsatisfactory professional conduct - Conduct by Parliamentary Inspector of Corruption and Crime Commission - Whether investigation of complaint would amount to contempt of Parliament - Parliamentary privilege - Public interest
Legislation:
Bill of Rights 1689 (UK), Article 9
Corruption and Crime Commission Act 2003 (WA), s 188, s 188(4), s 192, s 192(2), s 195, s 195(1), s 196(4), s 216(A)
Legal Profession Act 2008 (WA), s 3, s 5(a), s 36(2), s 36(3), s 403, s 405, s 407, s 409(1), s 410, s 425, s 435, Pt 13
Legal Profession Regulations 2009 (WA), Reg 11
Parliamentary Papers Act 1992 (Qld), s 3(2), s 3(3)
Parliamentary Privileges Act 1891 (WA), s 1
Parliamentary Privileges Act 1987 (Cth), s 16(2)
State Administrative Tribunal Act 2004 (WA), s 32
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
First Respondent : Mr M.J. Hawkins
Second Respondent : Mr A.S. Derrick SC
Solicitors:
Applicant: Self-represented
First Respondent : Self-represented
Second Respondent : Self-represented
Case(s) referred to in decision(s):
Aboriginal Legal Service of Western Australia Inc v State of Western Australia (1993) 9 WAR 297
Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44
Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8
Halden v Marks (1995) 17 WAR 447
Hamilton v Al Fayed [1999] 3 All ER 317
Re Parliamentary Inspector of the Corruption and Crime Commission
Ex parte Corruption and Crime Commission [2008] WASC 305
Stewart v Ronalds and Another (2009) 259 ALR 86
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Ronald Jenkins sought a review of a decision by the Legal Practitioners Complaints Committee to dismiss complaints against the Parliamentary Inspector of the Corruption and Crime Commission, Mr Malcolm McCusker QC. The Legal Profession Complaints Committee had dismissed Mr Jenkins' complaints on the basis that it was in the public interest to do so, because the supervision and monitoring of the Parliamentary Inspector was a matter for the Joint Standing Committee on the Corruption and Crime Commission and the Western Australian Parliament.
An issue arose as to whether or not investigation of the complaints might constitute a contempt of Parliament, and whether the Legal Practitioners Complaints Committee, and in turn the Tribunal, had jurisdiction to investigate Mr Jenkins' complaints. A second issue which arose was whether, if the Tribunal did have jurisdiction, it was in the public interest to dismiss the complaints.
The Tribunal considered the background to the matter, the role of the Parliamentary Inspector, the Joint Standing Committee on the Corruption and Crime Commission and the Legal Practitioners Complaints Committee. It concluded that, while the Legal Practitioners Complaints Committee and the Tribunal had jurisdiction to receive the complaints and consider appropriate action, pursuit of disciplinary action in relation to Mr Jenkins' complaint would, in effect, amount to the impeachment of Parliamentary proceedings, and constitute a breach of parliamentary privilege. On that basis, the Tribunal considered that the public interest demanded that Mr Jenkins' complaints should be dismissed. Furthermore, the Tribunal considered that, even if it were wrong as to whether pursuit of the complaints would breach parliamentary privilege, it was in the public interest to dismiss the complaints on the basis that substantially similar complaints had been already dealt with by the Joint Standing Committee on the Corruption and Crime Commission, which, with the Parliament, was responsible for the monitoring and supervision of the performance of the statutory function of the Parliamentary Inspector.
The application
On 28 April 2009, the applicant, Mr Ronald Frank Jenkins lodged a complaint with the second respondent, the Legal Practitioners Complaints Committee (Complaints Committee) concerning the first respondent, a legal practitioner Mr Malcolm McCusker QC. On 6 October 2009, the Complaints Committee resolved to dismiss Mr Jenkins' complaint because it was satisfied that it was in the public interest to do so. Mr Jenkins then brought this application pursuant to s 435 of the Legal Profession Act 2008 (WA) (LP Act) seeking a review of the Complaints Committee's decision.
The Complaints Committee's decision to dismiss the complaint was taken pursuant to s 425 of the LP Act which enables it, after investigation of a complaint, to dismiss a complaint if it is satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal (Tribunal) of either unsatisfactory professional conduct or professional misconduct, or it is in the public interest to do so.
The complaint by MrJenkins concerned Mr McCusker's conduct in his capacity as Parliamentary Inspector of the Corruption and Crime Commission, a position established by s 188 of the Corruption the Crime Commission Act 2003 (WA) (CCC Act).
Mr McCusker ceased to occupy the position of Parliamentary Inspector when his five year term expired. Given that the conduct complained of occurred while he held that office, Mr McCusker is sometimes referred to in these reasons as the Parliamentary Inspector notwithstanding that he no longer holds that position.
In dismissing Mr Jenkins' complaint, the Complaints Committee gave its reasons as follows:
The practitioner's conduct in carrying out his functions as Parliamentary Inspector is not conduct in connection with legal practice as it is the exercise of an administrative or executive function. Monitoring the work of a Parliamentary Inspector is a function of the Joint Standing Committee of the Corruption and Crime Commission. It is to that body that complaints concerning the manner in which the Parliamentary Inspector has carried out his functions should be referred. It is not in the public interest for the Committee to also seek to examine that same conduct.
At the initial directions hearing in relation to Mr Jenkins' complaint, the question of jurisdiction of the Complaints Committee, and in turn the Tribunal, to deal with complaints about the conduct of the Parliamentary Inspector was raised. Accordingly, a direction was made that the following questions be dealt with as preliminary issues, namely
i)Whether the Complaints Committee and in turn the Tribunal has jurisdiction to deal with the complaints made by the applicant;
ii)If the answer to issue (i) is yes, is it in the public interest for the Tribunal to investigate and deal with the complaints.
The second of those issues is perhaps better expressed by reference to the power conferred by s 425 of the LP Act, namely 'is it in the public interest for the Tribunal to dismiss the complaint'. Although the submissions of the Complaints Committee also address the question of the public interest in investigating and dealing with the complaints, we are satisfied that the parties addressed these submissions to the question of whether it is in the public interest for the complaint to be dismissed.
Directions were made for the parties to file submissions in relation to those issues, and for the issues to be dealt with on the papers. It is those issues to which these reasons are directed.
Validity of submissions
In accordance with the directions of the Tribunal, submissions were filed by the applicant and each of the first and second respondents. On 22 December 2009, the first respondent who had raised the issue of jurisdiction, filed its submissions. The following day, amended submissions were lodged with the Tribunal by the first respondent. The amendments were of a minor nature correcting typographical or syntax errors. In addition to his substantive response to those submissions, Mr Jenkins also filed a submission seeking that the Tribunal declare that the first respondent's submissions not be accepted or used in deciding the outcome of the matter on the basis that they were 'not a legal document, because the said submission is not signed by either' the first respondent or his Counsel.
That submission lacks any merit. There is no requirement for submissions filed in the Tribunal to be in any particular form. Standard orders frequently made by the Tribunal, although not in this case, occasionally prescribe the form which documents filed in the proceeding should take (see [36] of the standard orders used at directions hearings, mediations and compulsory conferences). Even that standard order does not specify a requirement for signature.
Section 32 of the State Administrative Tribunal Act2004 (WA) (SAT Act) specifies that the Tribunal is to act according to the substantial merits of the case without regard to technicalities and legal forms. It would be quite inconsistent with that statutory command to ignore the submissions of a party simply because they were unsigned, even if some formal requirement for signature existed. Accordingly, there is no basis upon which to disregard the submissions made on behalf of the first respondent.
Background
The source of Mr Jenkins' concerns which ultimately led to the involvement of the Corruption and Crime Commission (CCC) and the Parliamentary Inspector goes back to 9 November 2002. On that evening, Mr Jenkins was arrested by police following a complaint by his neighbours. He was charged with one count of disorderly conduct and one count of resisting arrest. When the matter came before the court, Mr Jenkins was legally represented. He pleaded guilty to each charge and was sentenced. Not long afterwards, Mr Jenkins complained to the Office of Parliamentary Commissioner for Administrative Investigations (The Ombudsman) about the conduct of two of the police officers who had attended at his house on 9 November 2002. At the request of the Ombudsman, the Commissioner of Police then caused to be carried out an internal investigation of Mr Jenkins' complaint. There was subsequent correspondence between the Ombudsman and Mr Jenkins in relation to the report prepared following the internal investigation.
On 1 January 2004, the Ombudsman's role in investigating complaints against members of the Western Australian Police Service was taken over by the CCC. The file was therefore forwarded to the CCC to complete the review which had not yet been finally resolved by the Ombudsman. Eventually, a report of the CCC, endorsed by the then Commissioner, was provided to Mr Jenkins. The recommendation contained in the report was that no further action be taken.
On 9 May 2004, Mr Jenkins wrote to the CCC expressing his dissatisfaction with the Commissioner's conclusions. The letter extended over 12 pages, and made a number of criticisms of the conduct of the investigation by the CCC.
On 12 July 2004, the CCC wrote to Mr Jenkins referring to his letter of 9 May 2004. The CCC advised that pursuant to s 196(4) of the CCC Act, it had notified the Parliamentary Inspector of his complaint about the conduct of its enquiry. It is apparent that, as a result of a conversation between the Officer of the CCC and Mr Jenkins on 5 July 2004, Mr Jenkins had already been advised of the reference to the Parliamentary Inspector. According to a chronology supplied by Mr Jenkins, he rang Mr McCusker on 6 July 2004 to inquire of progress.
It is evident that Mr Jenkins then made a number of enquiries of Mr McCusker as to progress of his complaint by letter and telephone from time to time during 2005. In February 2006, Mr McCusker had a meeting with Mr Jenkins to discuss his complaints. In June 2006, having still received no determination of his complaint, Mr Jenkins wrote to the Joint Standing Committee on the Corruption and Crime Commission (Joint Standing Committee). In August 2006, the Joint Standing Committee apparently had discussed the matter in camera with the Parliamentary Inspector, and on 23 August 2006, wrote to Mr Jenkins advising that he should expect a report shortly as to the outcome of the Parliamentary Inspector's investigation. Mr Jenkins eventually received Mr McCusker's report by letter dated 24 July 2007. The Parliamentary Inspector's nine page report concluded that Mr Jenkins' complaints had been thoroughly and objectively analysed, that there was no evidence of 'misconduct' by any police officer which would warrant further investigations and that Mr Jenkins' complaint of the Commission's handling of the matter was without foundation.
Mr Jenkins then complained about the conduct of the Parliamentary Inspector to the Joint Standing Committee. By letter dated 14 August 2007, the Joint Standing Committee Chairman wrote to Mr Jenkins advising that, in light of the Parliamentary Inspector's detailed response of 24 July 2007, the Joint Standing Committee was of the view that there is no reason for further action on the part of the Committee. By letter dated 22 July 2007, Mr Jenkins also complained to the then Attorney General concerning the Parliamentary Inspector's conduct, in particular in relation to the delay in the provision of his report and also alleging that Mr McCusker misled the Joint Standing Committee.
On 2 October 2007, Mr Jenkins again complained to the Joint Standing Committee and to the Attorney General demanding a full investigation by the Joint Standing Committee, and a prompt response by the Attorney General. Materials before the Tribunal do not reveal the response to those letters, but it is apparent that the complaints were not dealt with to Mr Jenkins' satisfaction.
On 28 April 2009, Mr Jenkins complained to the Complaints Committee about Mr McCusker's conduct. The details of his complaint were as follows:
1.Malcolm McCusker took over thirty eight (38) months to write his report.
2.There is no indication that Malcolm McCusker carried out any independent research or investigation into my complaint against the CCC.
3.Malcolm McCusker has refused to investigate further evidence supplied by me.
4.Malcolm McCusker has made a number of assumptions and conclusions, without any evidence, about critical parts of my complaint.
5.Malcolm McCusker has made little, if any, reference to relevant documents to support his assumptions and conclusions.
6.Malcolm McCusker did not answer any of my correspondence.
7.Malcolm McCusker has made statements, which are not true, about documents.
8.Malcolm McCusker has made statments [sic] about conversation which we had which are not true.
9.Malcolm McCusker has made statements about matters which are not in his portfolio.
10.Malcolm McCusker has made derogatory statments [sic] about my actions.
It can be seen that apart from the first complaint of delay, and the sixth complaint of failure to answer correspondence, Mr Jenkins' complaints relate to the manner in which Mr McCusker prepared his report and as to the accuracy of the contents of the report.
Jurisdiction
The first respondent argues that Mr Jenkins' complaint is not within the jurisdiction of either the Complaints Committee or the Tribunal because investigation of the complaint would amount to a breach of Parliamentary privilege and thus a contempt of Parliament. That contention is based upon three propositions.
The first is that the jurisdiction and power to discipline the Parliamentary Inspector is vested in the Governor (who has the power to suspend for, amongst other things, neglect of duties or misconduct) and with both Houses of Parliament - CCC Act s 192
Secondly, the Parliamentary Inspector is answerable to the Joint Standing Committee with regard to any complaint concerning the performance of his functions as Parliamentary Inspector.
Thirdly, the Parliamentary Privileges Act 1891 (WA) gives the legislative council and legislative assembly of Western Australia respectively complete control over the regulation of their own proceedings and the conduct of their members, free from interference from the courts: Aboriginal Legal Service of Western Australia Inc v State of Western Australia (1993) 9 WAR 297 at 304 - 305.
The role of the Parliamentary Inspector
The Office of the Parliamentary Inspector is created by s 188 of the CCC Act. Section 188(4) provides that:
The Parliamentary Inspector is an officer of Parliament and is responsible for assisting the Standing Committee in the performance of its functions.
Section 192 of the CCC Act deals with removal or suspension of the Parliamentary Inspector. It provides that the Parliamentary Inspector may, at any time, be suspended or removed from office by the Governor on addresses from both Houses of Parliament. Section 192(2) enables the Governor to suspend the Parliamentary Inspector from office if the Governor is satisfied that the Parliamentary Inspector is incapable of performing the duties of office, has shown himself or herself incompetent properly to perform, or has neglected to perform, those duties, or has been guilty of misconduct.
The functions of the Parliamentary Inspector are found in s 195 of the CCC Act. Section 195(1) of the CCC Act provides:
The Parliamentary Inspector has the following functions —
(aa)to audit the operation of the Act;
(a)to audit the operations of the Commission for the purpose of monitoring compliance with the laws of the State;
(b)to deal with matters of misconduct on the part of the Commission, officers of the Commission and officers of the Parliamentary Inspector;
(cc)to audit any operation carried out pursuant to the powers conferred or made available by this Act;
(c)to assess the effectiveness and appropriateness of the Commission's procedures;
(d)to make recommendations to the Commission, independent agencies and appropriate authorities;
(e)to report and make recommendations to either House of Parliament and the Standing Committee;
(f)to perform any other function given to the Parliamentary Inspector under this or another Act.
Section 196(4) of the CCC Act provides:
The Commission is to notify the Parliamentary Inspector whenever it receives an allegation that concerns, or may concern, an officer of the Commission and at any time the Parliamentary Inspector may review the Commission's acts and proceedings with respect to its consideration of such an allegation.
It was under that sub-section that the complaint by Mr Jenkins in relation to the CCC's initial report was referred to the Parliamentary Inspector.
Role of the Joint Standing Committee
Section 216(A) of the CCC Act provides that the functions and powers of the Joint Standing Committee are determined by agreement between the Houses of Parliament 'and are not justiciable'. The Joint Standing Committee's functions and powers are found in the Legislative Assembly's Standing Orders. Standing Order 290 provides that it is the function of the Joint Standing Committee to:
1.Monitor and report to the Parliament on the exercise of the functions of the Commission and the Parliamentary Inspector;
2.Enquire into, and report to Parliament on the means by which corruption prevention practices may be enhanced within the public sector;
3.Carry out any other functions conferred on the Standing Committee under the CCC Act.
Although the Joint Standing Committee does not have the power to discipline the Parliamentary Inspector, the CCC Act and the Standing Orders contemplate that the Joint Standing Committee might make a report to Parliament in relation to the Parliamentary Inspector's conduct which might, in turn, provide a basis for addresses from both Houses of Parliament which may lead to the Governor suspending or removing the Parliamentary Inspector from office. There is, therefore, a mechanism of 'disciplinary action' contemplated by the CCC Act and resting in the hands of the Joint Standing Committee, the Parliament and the Governor. Its actions in that regard are not justiciable, that is, they are not subject to review. The question is whether that mechanism excludes any other body investigating and dealing with any aspect of the Parliamentary Inspector's conduct whilst acting as Parliamentary Inspector.
We agree with the submission by the Complaints Committee that no part of s 192 nor any other section of the CCC Act expressly provides that jurisdiction to investigate, deal with or where appropriate to discipline the Parliamentary Inspector is vested exclusively in the Governor and the Parliament.
The Complaints Committee's jurisdiction
The Complaints Committee's jurisdiction dealing with complaints made against legal practitioners is set out in Pt 13 of the LP Act.
Section 405 of the LP Act identifies the practitioners to whom Pt 13 applies. Part 13 applies to an Australian legal practitioner. An Australian legal practitioner is an Australian lawyer who holds a current local practicing certificate (s 5(a)). An Australian lawyer is a person who is admitted to the legal profession under the LP Act or a corresponding law. The fact that Mr McCusker is an Australian legal practitioner is not in issue (although it is in issue whether Mr McCusker was acting in that capacity when performing his duties as Parliamentary Inspector).
Section 36(3) of the LP Act provides that a WA Government lawyer engaged in government work is taken to be a local legal practitioner and an Australian legal practitioner. 'WA Government lawyer' means an Australian lawyer employed in a number of specified offices, including 'a government agency prescribed by the regulations for the purposes of this definition'. Regulation 11 of the Legal Profession Regulations 2009 (WA) prescribes a number of entities 'for the purposes of the definition of WA government lawyer in section 36(1) of the LP Act', and includes 'the office of the Parliamentary Inspector of the Corruption and Crime Commission established under the Corruption and Crime Commission Act 2003'. The Complaints Committee argues that, because the first respondent was not 'employed in' the office of the Parliamentary Inspector, but was the holder of the statutory office of Parliamentary Inspector, s 36(3) does not render him a 'WA Government lawyer'. The contrary contention is that the statutory office holder of an entity referred to under the definition of WA Government lawyer is properly described as being employed in the relevant office of that agency, notwithstanding that they are employed in the capacity of the statutory officer. For reasons which follow, it is not necessary for us to resolve that question.
A WA Government lawyer is, under s 36(3), an Australian legal practitioner where he or she is 'engaged in government work'. Section 36(2) provides:
A WA government lawyer is engaged in government work when the lawyer is engaged in legal practice in the course of the lawyer's duties in relation to the entity in which the lawyer is employed.
The expression 'engage in legal practice' is defined in s 3 of the LP Act to include 'practise law'.
The first respondent argues that he was not 'engaged in legal practice' when he reviewed the CCC's conduct about which Mr Jenkins complained. Rather, he submits, he was an officer of the Parliament acting in accordance with the authority conferred upon him by the CCC Act.
Mr Jenkins notes that, in order to qualify for appointment as Parliamentary Inspector, a person must be, or have been, a legal practitioner of not less than eight years legal experience. He notes that Mr McCusker practises as a barrister and did so throughout the period of holding the office of Parliamentary Inspector.
In our view, notwithstanding that a Parliamentary Inspector is undoubtedly called upon to utilise the skills and knowledge gained as an experienced legal practitioner, we do not consider the Parliamentary Inspector when performing the functions and exercising the powers of office, is 'engaged in legal practice' for the purposes of the LP Act. He is not providing legal services, but rather performing a statutory function on behalf of the Parliament. He is not, therefore, an Australian legal practitioner by virtue of s 36(3), even if he is a 'WA Government lawyer' as defined in that section.
The conclusion that, in performing his functions as Parliamentary Inspector, the Parliamentary Inspector is not engaged in legal practice is relevant to the question of public interest dealt with in the second of the preliminary issues. Its significance in that respect is a matter to which we will return later in these reasons.
As already noted, there is no issue that, in his practice as a barrister, independently of his role as Parliamentary Inspector, Mr McCusker is, and was at the relevant times, an Australian legal practitioner engaged in the practice of law in Western Australia, regardless of whether he is a WA Government lawyer. Section 407 of the LP Act provides that Pt 13 applies to conduct of an Australian legal practitioner occurring within Western Australia.
Section 409(1) of the LP Act provides that a complaint may be made under Pt 13 about an Australian legal practitioner's conduct to which the part applies. The complaint may be made by any person who has a direct personal interest in the matters alleged in the complaint (s 410). Part 13 deals with the key concepts of unsatisfactory professional conduct and professional misconduct. Unsatisfactory professional conduct includes conduct occurring in connection with the practice of law that falls short of the standard of competence and diligence which a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Professional misconduct includes unsatisfactory professional conduct where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence and conduct 'whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice' - s 403 LP Act.
It can be seen from the definition of professional misconduct that Pt 13 of the LP Act can deal with conduct which does not necessarily occur in connection with the practice of law.
Mr Jenkins' complaint concerns matters in respect of which he has a personal interest, and concerns the conduct of an Australian legal practitioner. Conduct which can be the subject of complaint under the LP Act includes conduct otherwise than in connection with the practice of law. Mr Jenkins' complaint meets all of the formal requirements in relation to the lodgement of the complaint. Subject to resolution of the question as to whether Parliament has exclusive jurisdiction in relation to discipline of the Parliamentary Inspector, Mr Jenkins' complaint meets the requirements of Pt 13 of the LP Act so that the Complaints Committee would have jurisdiction to deal with the complaint.
Is investigation of Parliamentary Inspector's conduct a contempt of Parliament?
Section 1 of the Parliamentary Privileges Act 1891 (WA) (PP Act) specifies that both Houses of the Western Australian Parliament have all of the privileges, immunities and powers set out in the PP Act, and to the extent that they are not inconsistent with the PP Act, the privileges, immunities and powers by custom, statute or otherwise of the Commons House of Parliament of the United Kingdom as at 1 January 1989. One of the privileges to which the English House of Commons is entitled is defined in Article 9 of the Bill of Rights (1689) (UK) which provides that freedom of speech, debates or proceedings in Parliament ought not be impeached or questioned in any court or place out of Parliament. It is settled that Article 9 is to be given a wide interpretation - see Halden v Marks (1995) 17 WAR 447 at 461; Hamilton v Al Fayed [1999] 3 All ER 317 at 331. The first respondent contends that, since he is an officer of the Parliament responsible for assisting the Joint Standing Committee of the Parliament in the performance of its functions, and his report was prepared in that capacity, his report, and his conduct in preparation of it, cannot be impeached either by the Complaints Committee or the Tribunal.
Neither the applicant nor the Complaints Committee accepts that proposition.
Mr Jenkins' response to that contention appears to be based on the propositions that the Joint Standing Committee has a conflict of interest as an investigator of the Parliamentary Inspector, that it has no power to discipline the Parliamentary Inspector, that it did not in fact adequately investigate his complaints, and that the Joint Standing Committee 'is not a fit and proper body to investigate his complaint'. Those complaints go to the structure of the lines of accountability established by the CCC Act. The Tribunal cannot ignore the framework established by the CCC Act and the policy which underlies it. It is inappropriate to make any comment as to the merits or otherwise of Mr Jenkins' contentions on this point. These submissions do not address the question of the application of Parliamentary privilege to the present circumstances.
The Complaints Committee submits that the contention that the Tribunal lacks jurisdiction, because the conduct of the Parliamentary Inspector is subject to Parliamentary privilege, is misconceived. It accepts that it may be that, if a statutory body has jurisdiction to deal with a particular matter, the existence of Parliamentary privilege will impact upon the scope of the matter that can be ventilated as part of the application or upon the evidence that might be adduced or relied upon as part of the application.
In Halden v Marks, the Full Court accepted that there were two main categories of cases in which courts have considered Parliamentary privilege. It said at 462 E - G:
First, there are cases where a question of parliamentary privilege is raised in a case already before the court, as, for example, where a party seeks to rely on something said or done in Parliament. In the exercise of its general jurisdiction, and in the regulation of its own proceedings, the court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered, if the court concludes that to do so would be a breach of privilege. In regulating its conduct in this way, the court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceedings in Parliament - R v Jackson (1987) 8 NSWLR 116; Prebble v Television New Zealand Ltd (supra); ABC v Chatterton (1986) 46 SASR 1; Grassby (1991) 55 A Crim R 419; NSW Branch of the Australian Medical Association v Minister for Health (1992) 26 NSWLR 114.
Secondly, there are cases where the courts have been asked to review action by Parliament to enforce its proceedings, most commonly where Parliament has, by warrant, sought to subject a citizen to restraint by arrest. In these cases, the court will consider whether the grounds stated in the warrant are sufficient in law to amount to a breach of privilege; but, if so, the court will not judge whether there was in fact a breach of privilege.
A threshold question is whether the preparation of a report by the Parliamentary Inspector constitutes activity falling within the expression 'speech debate or proceeding in parliament' as used in Article 9. A similar question arose in Hamilton v Al Fayed, a case heard in the Court of Appeal in England. It concerned a defamation action in relation to an allegation which had been the subject of investigation by the Parliamentary Commissioner for Standards (PSC) who had prepared a report which was delivered to the Committee on Standards and Privileges, adopted by that Committee and subsequently approved by resolution of the House of Commons. The office of the PSC was established by the House of Commons Standing Orders (Public Business) (1995). The principal duties of the PSC were to receive and investigate complaints in relation to the registration and declaration of interests of members, and other aspects of the propriety of a member's conduct, and to report to the Committee on Standards and Privileges. The Standing Orders provided that the Commissioner may be dismissed by resolution of the House. They also established a select committee called the Committee on Standards and Privileges whose task was to include overseeing the work of the PSC.
It was argued that the enquiry and report of the PSC were not 'proceedings in Parliament' for the purposes of Article 9 of the Bill of Rights. The Court held that the PSC enquiry and report, the hearings before the Committee on Standards and Privileges and its report, as well as the resolution of the House, amounted individually and collectively to 'proceedings in Parliament' for the purposes of Article 9. It did so on the basis that the inauguration of the bodies, their subsequent actions, enquiry, the reports, and the resolution of the House constituted at every stage procedures which the House adopted for the better superintendence of its members' conduct and the protection of its own reputation (at 330).
The Complaints Committee drew our attention to the provisions of s 16(2) of the Parliamentary Privileges Act 1987 (Cth), and to several decisions in this State and others touching upon the relationship between the courts and the Parliament. As the Complaints Committee accepted, none of those authorities provide clear guidance as to the question presently before the Tribunal. We note however that in Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8, the Queensland Court of Appeal held that an investigation undertaken by the Parliamentary Justice Commission, at the request of the Parliamentary Criminal Justice Committee, and the Parliamentary Justice Commissioner's report to the Committee prepared in response to the Committee's requests, constituted 'proceedings in Parliament' within the meaning of sections 3(2) and 3(3) of the Parliamentary Papers Act 1992 (Qld). Section 3(2) of the Parliamentary Papers Act 1992 (Qld) defined 'proceedings in Parliament' to include preparation or presentation of documents presented to the Parliament, or prepared for purposes incidental to that purpose, and preparing, making or publishing a document under the authority of the House or a committee. The conclusion by the Court must, of course, be read in that context, and in the absence of a similar statutory provision defining 'proceedings in Parliament' for the purposes of the PP Act, little weight can be attached to the Court's conclusion. The case does no more than illustrate that a wide interpretation has been taken to the notion of 'proceedings in Parliament' in that jurisdiction. That provides some support, given the recognition in Halden v Marksthat Article 9 should be given a wide interpretation, to a conclusion that things said and done outside of Parliament can be considered 'proceedings in Parliament' for the purposes of Article 9.
We were also referred to Re Parliamentary Inspector of the Corruption and Crime Commission: Ex parte Corruption and Crime Commission [2008] WASC 305, Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44 and Stewart v Ronalds and Another (2009) 259 ALR 86. None of those decisions required the court to finally determine the extent or reach of Parliamentary privilege in the particular circumstances of each case, and it is not necessary to consider them further. It is suffice to say that none provides any basis to conclude that the approach of the Court of Appeal in Hamilton v Al Fayed does not represent the law in this State.
The Parliamentary Inspector is an officer of the Parliament. His role exists undoubtedly to assist the Parliament in the superintendence of the CCC. Adopting the view of the English Court of Appeal in Hamilton v Al Fayed we consider that any proceedings which seek to impeach the conclusions reached in the Parliamentary Inspector's report of 27 July 2007 ought not be ventilated because it would constitute a breach of Parliamentary privilege.
We are mindful in reaching this conclusion that the report was not prepared at the request of the Joint Standing Committee, or for the purpose of tabling in Parliament, although a copy of the report was provided to the Joint Standing Committee. It was however, a task undertaken by an officer of Parliament in the performance of a function, on behalf of Parliament, of supervision of the CCC.
The conclusion that investigation and action on the complaint will breach Parliamentary privilege, is not a conclusion that the Complaints Committee lacks the jurisdiction to receive the complaint and consider what action is appropriate in relation to it. Jurisdiction exists because the complaint concerns the conduct of a person who is a legal practitioner, albeit not in connection with the practice of law. However, the conclusion that investigation and action will breach Parliamentary privilege, renders it appropriate to refuse to allow the matter to be ventilated.
Public interest
The Complaints Committee concluded that it was not in the public interest to have the Committee seek to examine the same conduct as might be considered by the Joint Standing Committee on the CCC. It did not do so on the basis that examining the conduct would breach Parliamentary privilege. In our view, the public interest in avoiding any breach of Parliamentary privilege, and thereby respecting the role, functions and powers of Parliament, leads to the conclusion that it is in the public interest to dismiss Mr Jenkins' complaints. Mr Jenkins' complaints amount to an attack on the conclusions drawn by the Parliamentary Inspector and the procedures which he undertook in preparing his report.
Even if we are wrong as to our conclusion that the preparation and delivery of the Parliamentary Inspector's report constitutes a proceeding in Parliament for the purposes of Article 9, we nevertheless agree with the Complaints Committee's decision to dismiss the complaint on the basis that it is in the public interest to so.
Mr Jenkins has already sought to obtain redress against Mr McCusker through the Joint Standing Committee, and by way of complaint to the Attorney General, through the Parliament. He was right to address his complaint concerning Mr McCusker's conduct to those bodies. They have been dealt with, albeit with an unacceptable outcome so far as Mr Jenkins is concerned. Consideration of those complaints made by Mr Jenkins in these proceedings will inevitably involve further enquiry into the matters that have been subject to consideration by the Police Service, the CCC and the Parliamentary Inspector. More importantly, however, as we have already concluded, Mr McCusker was not engaged in legal practice when undertaking his functions as Parliamentary Inspector. While it is true, as Mr Jenkins notes, qualifications as a lawyer are a prerequisite to appointment as Parliamentary Inspector, performance of the Parliamentary Inspector's functions is not connected to the provision of legal services to a client. The work of the Parliamentary Inspector is the performance of a statutory function. No question of duties to a client in the ordinary sense arise. The allegation of undue delay, which might be made by a client against his or her solicitor, or which involve a clear breach of duty to the client, are different in nature to allegations of delay by a statutory officer whose duties lie to the Parliament of which he is an officer. Allegations of the latter kind are matters for Parliament. Where the supervision and monitoring of the performance of a statutory function is entrusted to the Parliament, it is in the public interest that the Complaints Committee not embark upon an alternative disciplinary process.
Conclusion
For the forgoing reasons, we are of the view that the decision of the Complaints Committee to dismiss the complaint on the basis that it is in the public interest to do so is the correct and preferable decision, and the application for review should be dismissed.
Orders
The application is dismissed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
2
6
8