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Monday, 23 November 2009
Page: 8615


Senator BRANDIS (8:38 PM) —On behalf of the Committee of Privileges, I present the 141st report of the committee, entitled Possible interference with, or imposition of a penalty on, a witness before the Legal and Constitutional Affairs References Committee.

Ordered that the report be printed.


Senator BRANDIS —I seek leave to move a motion in relation to the report.

Leave granted.


Senator BRANDIS —I move:

That:

(a) the Senate endorse the finding in paragraph 1.25 of the report, that no contempt should be found in respect of the Chief Executive Officer, or another staff member, of the Aboriginal Legal Service of Western Australia; and

(b) that the Chairs’ Committee, established under standing order 25(10), consider the adequacy of information provided to witnesses on the subject of possible intimidation or imposition of a penalty in consequence of a witness’s evidence to a Senate committee.

This matter was referred to the committee on 10 September 2009 on the motion of the chair of the Legal and Constitutional Affairs References Committee, Senator Barnett, as a consequence of that committee’s report entitled A possible contempt in relation to a witness to the committee’s inquiry into access to justice.

Ms Rowena Puertollano was an employee of the Aboriginal Legal Service of Western Australia who made a submission to the inquiry of the Legal and Constitutional Affairs References Committee into access to justice. She signed herself as the coordinator of the Broome Family Violence Prevention Legal Service and made references to her experiences in that role, but she did not purport to represent the organisation or its views. When the submission became known to her employer, her supervisor issued her with a written warning for serious misconduct for having made the submission. Ms Puertollano then did the right thing by notifying the references committee of what had happened.

The references committee wrote to the employer indicating that its action was possibly in contempt of the Senate, and seeking an assurance that Ms Puertollano would suffer no disadvantage for having made the submission. The references committee also recommended that the warning be withdrawn. The references committee was not satisfied with the response of the Chief Executive Officer of the Aboriginal Legal Service of Western Australia, Mr Dennis Eggington, who took issue with the references committee’s view that the warning letter constituted a possible contempt and appeared to insist that the ALSWA continued to assert its right to regulate what its employees told parliamentary committees. However, Mr Eggington also apologised to the committee and indicated that the warning letter would be withdrawn. In the meantime, Ms Puertollano had resigned.

On receiving the reference, the Committee of Privileges sought and received submissions from Ms Puertollano and the ALSWA, in respect of Mr Eggington and Ms Puertollano’s supervisor. The tenor of those submissions is outlined in the report. Importantly, Mr Eggington assured the committee that he was not seeking to justify an erroneous position and that there had been no intention to interfere with the references committee’s conduct of the inquiry. He also suggested that clearer guidance on these matters would be useful. The committee has accepted his submission for the reasons given in the report and has concluded that no contempt should be found.

Because Ms Puertollano resigned from her employment before these matters had been resolved, the committee is unable to offer her any practical comfort, other than to say that she did the right thing in reporting to the references committee what had happened to her. She had every right to make her submission to the access to justice inquiry. Her former employer was in the wrong in issuing her with a written warning of serious misconduct, though not, in the committee’s view, in contempt.

The report contains the requested guidance in paragraphs 1.23 and 1.24, to which I draw the attention of all Senate committees, which, from time to time, encounter similar circumstances. In particular, the report states:

... for any person who seeks to take action of any kind against another person as a consequence of their evidence to a Senate committee ... the committee’s advice is that such action should not be taken in any circumstances. If it is taken, such action may constitute a contempt of the Senate. A person’s right to communicate with the parliament and its committees is an untrammelled right, overriding all other considerations.

A simple alternative remedy is for the affected body, be it an employer, a professional association or any other body, to put in its own submission to the inquiry, disavowing the individual’s submission as representing the views of the organisation. Under no circumstances should direct action be taken against the individual. In order to keep this matter on the Notice Paper so that senators may consider the issues before they vote on the motion, I seek leave to continue my remarks.

Leave granted; debate adjourned.