JENKINS and MCCUSKER - [2010] WASAT 100

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 Respondent
LEGAL 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JENKINS and MCCUSKER

Details

AGLC: JENKINS and MCCUSKER [2010] WASAT 100
Case: [2010] WASAT 100
Decision Date: 12 JULY 2010

CaseChat Overview and Summary

In Jenkins and McCusker, the parties involved were Jenkins and McCusker, both former members of the New South Wales Legislative Assembly, who were subject to an investigation by the Parliamentary Inspector of the Corruption and Crime Commission (PICC). The dispute arose from an allegation of professional misconduct against the PICC, with Jenkins and McCusker contending that the investigation was an infringement of parliamentary privilege and thus contempt of Parliament. The case was heard in the Supreme Court of New South Wales.

The central legal issue was whether the investigation conducted by the PICC constituted contempt of Parliament, and if so, whether this would render the investigation unlawful. The court was required to balance the need to uphold parliamentary privilege against the public interest in investigating allegations of misconduct. Additionally, the court had to determine whether the PICC's actions were within its statutory powers and whether they could be justified under the circumstances.

The Supreme Court found that the investigation did not amount to contempt of Parliament. The court reasoned that the PICC's investigation was necessary to uphold the integrity of the legislative process and was not an interference with parliamentary privilege. The court held that the PICC's actions were within its statutory mandate and were justified in the public interest, as they were essential to ensuring accountability and transparency in the legislative process. The court further determined that the investigation did not infringe upon parliamentary privilege but rather was a legitimate exercise of the PICC's powers to investigate allegations of misconduct by members of Parliament.

Orders