Report


Introduction

1.1        The Committee of Privileges reports to the Senate on its inquiry into the possible improper influence of a witness in respect to evidence given or to be given before the Environment and Communications References Committee or induced to refrain from giving evidence before that committee. The possible conduct relates to the references committee’s inquiry into fin-fish aquaculture in Tasmania which was undertaken in 2015.

1.2        The matter was referred to the committee on 9 February 2017, in the following terms:

Having regard to the material tabled by the President on 8 February 2017, whether there was any attempt to improperly influence a witness before the Environment and Communications References Committee, and whether any contempt of the Senate was committed in that regard.

1.3        The material tabled by the President on 8 February was the exchange of letters between the President and the Chairs of the references committee. The letters are at attachment 2 of the Appendix.

1.4        In summary, the initial letter, dated 2 November 2016, was from Senator Whish-Wilson, who chaired the references committee during the fin-fish aquaculture inquiry. The letter drew to the President’s attention comments made during a Four Corner’s program by a submitter (Mr Hastwell) to the fin-fish aquaculture inquiry which implied that he had been offered an inducement by Tassal (a salmon farming company) not to appear before the references committee at the hearings held in Hobart on 15 July 2015. The President wrote to Senators Whish-Wilson and Waters (then the Chair of the references committee) indicating that, as Privilege Resolution 1(18) had not then been pursued, ‘the appropriate course of action’[1] in the first instance, would be for the references committee to establish the facts.

1.5        Following the President’s advice the references committee undertook this task and provided the information to the President. This letter, dated 27 January 2017, provides the context of this committee’s inquiry as it outlines the relevant facts relating to the references committee’s fin-fish aquaculture inquiry and the material submitted by both proponents – Mr Hastwell and Tassal. The references committee indicated that it was ‘possible that the committee’s ability to inform itself fully about the impacts of the fin-fish aquaculture on waterway health was negatively affected as a result of his decision to refrain from giving evidence’.[2] When the Senate next met the President made a statement, indicating that the references committee had ‘concluded that the witness may have been improperly influenced’,[3] tabled the letters and invited a motion to be lodged which would refer the matter to this committee.

Role of the Committee

1.6        The committee has been charged by the Senate to establish, in the first instance, whether there was any attempt to improperly influence Mr Hastwell and secondly, whether any such action may constitute a contempt of the Senate.

1.7        In addressing these matters, the committee is mindful of Privilege Resolution 6 (10) (Matters constituting contempts – Interference with witnesses) which provides:

A person shall not, by fraud, intimidation, force or threat of any kind, by the offer or promise of any inducement or benefit of any kind, or by other improper means, influence another person in respect of any evidence given or to be given before the Senate or a committee, or induce another person to refrain from giving such evidence.

1.8        At the commencement of the inquiry the committee has before it the letters provided by both Mr Hastwell and Tassal, as well as the correspondence tabled by the President. In addressing the second aspect of the inquiry, the committee also has the terms of Privilege Resolution 3 (Criteria to be taken into account when determining matters relating to contempt) to guide its deliberations, specifically:

  • whether the actions taken can substantially obstruct the Senate and its committees from preforming their functions;
  • the existence of any other remedy;
  • whether the act was committed with intent or whether there is a reasonable excuse for committing the act.

Conduct of the inquiry

1.9        The committee has always regarded the protection of witnesses as paramount and acknowledged that the protection of the Senate’s committees’ capacity to conduct inquiries requires measures to support witnesses and safeguard the integrity of their evidence.

1.10      In 1988 the Senate adopted resolutions which set guidelines for committees generally and others in their conduct to ensure that witnesses are treated in a manner that achieves this outcome. Privilege Resolution 1 (Procedures to be observed by Senate committees for the protection of witness) is routinely provided to witnesses when they are invited to appear before Senate committees. This committee has an additional resolution (Privilege Resolution 2 - Procedures for the protection of witness before the Privileges Committee) that instructs it in the conduct of an inquiry. Privilege Resolution 2 requires the committee to inform the person against whom the allegation is made of the nature of the allegation, any evidence provided and to provide them with a reasonable opportunity to respond to the allegations and evidence.

1.11      While the letter of 27 January 2017 from the references committee to the President laid out the relevant facts and the positions of both Mr Hastwell and Tassal, the committee formed the view that Mr Hastwell should be given an opportunity to provide any new evidence to this committee inquiry. The committee wrote to him on 20 February 2017 and received a response on 27 February re-submitting his submission (together with attachments) on the matter to the references committee, and an additional letter which included some comments relating to the submission made by Tassal to the references committee’s invitation to comment.

1.12      In accordance with the provisions of Privilege Resolution 2, an invitation to make comment was made to Tassal on 24 March and a response was made on 4 May 2017. The letter responding restated evidence made to the references committee during its investigation and addressed the comments made by Mr Hastwell in his letter of 27 February 2017.

Mr Hastwell’s view

1.13      Mr Hastwell first indicated that Tassal’s actions during the sale of his marine leases had been determinate in his decision not to appear as a witness before the references committee on the ABC Four Corners program that aired on Monday, 31 October 2016. The program ‘Big Fish’ canvassed a range of issues concerning salmon farming in Tasmania and interviewed Mr Hastwell in relation to the sale to Tassal of the Dover Bay Mussel marine leases. Mr Hastwell stated that he had decided not to appear at the committee’s hearing as ‘the cost would have been too great’. He also agreed with the interviewer’s suggestion that he was ‘prevented or coerced’ from giving evidence.

1.14      In his evidence to the references committee Mr Hastwell expanded on his view that giving evidence to the references committee would have incurred a financial cost to him and his company. The Dover Bay Mussel company had encountered financial losses over the preceding financial years and he could not risk the sale of the leases which would ‘save a large portion of our capital investment’.[4]

1.15      Mr Hastwell also identified actions taken by Tassal in the negotiations over the sale as contributing factors. Mr Hastwell, through his lawyers, had sought to amend the non-disparagement clause of the sale deed in an email of 10 June 2015. The terms of the proposed new clause were to specifically exclude from the non-disparagement clause the submission provided to the references committee on 27 May 2015 and any oral evidence that Mr or Mrs Hastwell might provide to the references committee. Mr Hastwell submitted that Tassal did not accept the proposed new clause. Further the Hastwells were reminded of the provisions of the non-disparagement and confidentially clauses in an email from Tassal of 9 July 2015, which noted that they had been invited to give evidence at the hearings. Mr Hastwell states that, as the submission was based around the issues in dispute which were the subject of the confidentiality clause of the deed, he was ‘advised that effectively by appearing at the Senate Inquiry I would be potentially in breach of the deed’.[5]

1.16      This email had been preceded by an exchange of emails in the first week of July seeking to finalise the sale of the marine leases. In the email of 1 July 2015, Tassal conveyed to Mr Hastwell’s lawyer that the terms of the offer made via email on 18 June would be withdrawn if it was not accepted by 8 July. That email was followed on 7 July by an email reiterating the withdrawal of the offer if not accepted and requesting clarification as to how the Hastwells were to give evidence at the Senate inquiry without ‘breaching confidentiality around discussions with Ms Sams and the terms of the Deed’.[6] Mr Hastwell characterises the first of these emails as placing them in the position where they had to accept the offer or ‘suffer a considerable financial penalty’.[7] He also provides a copy of their response dated 8 July 2015, to Tassal accepting the 18 June offer, ‘... as amended in relation to the payment amounts’.[8] The letter of acceptance also canvassed evidence to the Senate inquiry, indicating that the Hastwells would not disclose that the leases had been sold nor the terms of the sale. It further stated that the Hastwells intended to ‘proceed with giving evidence on the basis that you have no objection to our clients involvement and attendance at the inquiry provided no disclosure is made in relation to the sale of the leases to your company or the terms of the sale if you do have an objection to any of our clients speaking at the Senate inquiry, then please immediately advise’.[9] Tassal’s email of 9 July reminding of the provisions of the disparagement clause was in response.

1.17      Mr Hastwell acknowledges a further email sent on 10 July 2015, in which Tassal indicated that it was withdrawing its ‘offer as it may be construed as contravening the protection of witnesses procedures’.[10] The email further indicated that their consideration of the sale would be resumed after the references committee reported on the fin-fish aquaculture inquiry. Mr Hastwell’s solicitors responded by email on 13 July 2015:

Your purported withdrawal of the offer to purchase is not accepted on the basis that our clients accepted your offer by letter of 8 July 2015 and accordingly your offer can no longer be withdrawn.[11]

1.18      The email went on to state that ‘our clients do not intend to attend the Senate inquiry unless ordered by the Committee so to do’.[12]

1.19      Mr Hastwell advised the references committee that he ‘was advised by my Lawyer that Tassal could not withdraw the offer ... and there was no guarantees that the offer would be presented in the same form and if we allowed them to withdraw we could end up with nothing’.[13] Further, he expressed the view that if Tassal were concerned ‘to not be seen to contravene the requirements for protection of witnesses, all they had to do was ask for an amendment to the Deed as per our request in the letter of 10/6/15’.[14]

1.20      On the morning of the 15 July 2015 hearing, Mr Hastwell informed the references committee that he would not be appearing as a witness due to medical reasons. The references committee confirms the explanation provided by Mr Hastwell as to his withdrawal from the witness list and indicates that it was supported by Mrs Hastwell in a subsequent phone call.[15] The references committee also advised that it had been notified earlier that Mr Hastwell was to undergo surgery.

1.21      Mr Hastwell provided copies of the various emails, some with text redacted, in his submission to the references committee.

Tassal’s response

1.22      Tassal, in responding to Mr Hastwell’s submissions, provided an account of the negotiations similar to that provided by Mr Hastwell, with some additions. Tassal indicated that the sale of the Dover Bay Mussel marine leases was negotiated in two tranches. The negotiations initially took place between Mr Hastwell and Tassal’s Head of Sustainability (Ms Sams) who ‘had offered to assist Mr Hastwell with his operations’.[16] Tassal acknowledge that sale offer was accepted in principal by Mr Hastwell in an email, dated 13 May 2015, in which he also indicated that:

We would also agree not to proceed with legal action and unless compelled to do so withdraw from the senate enquiry process, we will also not continue with our media campaign.[17]

1.23      Tassal, in an email of 20 May 2015, responded by indicating that it was best to now place the matter in the hands of the lawyers so that ‘... the details around payment, legal action, confidentiality and the like,’ could be sorted out.[18]

1.24      On 21 May 2015, Mr Hastwell, in providing the name of the law firm which would act for him in the sale, also advised Tassal that ‘as the deadline for submissions to the senate enquiry is looming time is of the essence, please ask your lawyers to have an Agreement for Sale prepared and submitted to Scott Law for our perusal by 1100 Monday 25 May on the basis that if satisfactory it will be signed by the end of the week’.[19]

1.25      Tassel further submitted that a number of the terms of the sale were the subject of further negotiation, including the confidentiality and the non-disparagement clauses. Each of the clauses was routinely included in Tassel’s documents for commercial transactions. On 4 June 2015, in an email seeking external legal advice on the terms of the draft deed, Tassal’s Legal Manager indicated that:

We have made it very clear to the Hastwells as well as their lawyer ... that this arrangement does not restrict the Hastwells from making a submission to the upcoming Senate Inquiry;[20]

1.26      Tassal’s response to Mr Hastwell’s lawyer’s email of 10 June 2015 which proposed the amendment to the disparagement clause in the deed of sale was made in an email sent on 18 June 2015. The response stated, ‘We confirm, as per my conversation with you on or about 25 May 2015 that the Deed is irrelevant to the Federal Senate Standing Committee on Environment and Communications in relation to the regulation of the fin-fish aquaculture industry’.[21]

1.27      The exchange of emails between Mr Hastwell’s lawyers and Tassel intensified in early July 2015. This exchange included the email of 9 July 2015 in which Tassal reminded Mr Hastwell, through his lawyer, ‘... of their obligations not to make disparaging statements whether in relation to the Senate Enquiry or to the media or otherwise’.[22]

1.28      Tassel acknowledges the wording relating to the Senate inquiry in some of its emails could have been drafted more clearly but point out that the correspondence was between lawyers negotiating a sale. They contend that their Legal Manager’s ‘intent and legal focus was on dealing with the issues of disparagement and confidentiality with Mr Law, not Mr Hastwell’s involvement with the Senate inquiry’.[23] Tassal notes that Mr Hastwell had access to his own legal advice during the negotiations and in making the decision to withdraw from the hearing.

Committee’s view

1.29      The committee’s responsibility is to examine the facts to form a view as to whether Tassal acted in a manner that was designed to prevent Mr Hastwell from giving evidence to the references committee, or to influence what Mr Hastwell provided as evidence. The committee has two similar accounts of the negotiations that took place between the two parties over the sale of the Dover Bay Mussels marine leases. Neither contradicts the facts of the other, but rather provides different perspectives about what transpired in the negotiation and the intent of those negotiations. The committee has considered both accounts. On the evidence before the committee, it is unable to conclude with any certainty that Tassal sought to influence Mr Hastwell either in his decision to appear before the committee or in the evidence that he might give to the hearing.

1.30      Central to Mr Hastwell’s view that he was prevented from giving evidence to the references committee is the timeline for the sale of the marine leases. In the information provided by both Mr Hastwell and Tassel, the sale of the marine leases had been agreed prior to the hearing of 15 July. In relation to Tassal’s purported withdrawal from the proposed sale on 10 July, Tassal informed the committee that, when it became aware of the protection afforded to witnesses as outlined in the Procedures to be Observed by Senate Committees for the Protection of Witnesses, it ‘became concerned that an acquisition of Mr Hastwell’s leases may potentially be construed or perceived as an inducement or benefit given to Mr Hastwell to influence him potentially in relation to any evidence he may give’.[24] The matter was resolved before Mr Hastwell withdrew from the hearing’s witness list on the morning of the hearing with Mr Hastwell acknowledging that he acted in accordance with the advice of his lawyer. Tassal indicated that the lawyer’s advice was incorrect as the sale deed, which included the non-disparagement clause, had not been executed at the date of the hearing.[25]

1.31      Another factor contributing to Mr Hastwell’s view that he had been prevented from giving evidence to the references committee’s fin-fish aquaculture inquiry was Tassal’s failure to amend the non-disparagement clause. Mr Hastwell informed the committee that it remained opened to Tassal to adopt the amendments proposed by him which would have then made it clear that any evidence provided to the references committee was not covered by its provisions. However, Tassal had indicated on more than one occasion to both to Mr Hastwell and others that it was not seeking to place any prohibitions on the evidence Mr Hastwell might give to the references committee. It had confirmed in an email of 18 June to Mr Hastwell’s lawyer a conversational comment that ‘the Deed is irrelevant to the Federal Senate Standing Committee on Environment and Communications’.[26] The submission made by Mr Hastwell to the fin-fish aquaculture inquiry was published on the references committee’s website on 16 June 2015. In this context it would seem unnecessary to amend the terms of the disparagement clause to specifically exclude the submission and any evidence required to be given. The submission was already published and the negotiations on the sale of the marine leases were on-going.

1.32      The other action taken by Tassal, which Mr Hastwell describes as the ‘got you’ moment, was the email reminder of 9 July 2015 to Mr Hastwell’s lawyer which referenced the Hastwells’ obligations under the confidentiality and non-disparagement clauses in the deed’.[27] As this reminder was in response to a question posed by Mr Hastwell’s lawyer it is difficult to conclude that it was designed to apply undue influence on Mr Hastwell.

1.33      The committee is concerned that reference to evidence to the fin-fish aquaculture inquiry appears to be commonplace during the negotiations, together with references to media campaigns and legal action. It would make the observation that the primary purpose of the contempt provisions of parliamentary privilege is to protect the integrity of the work of the Parliament. Decisions about whether to give evidence and/or what evidence a witness might give should not be used as currency in commercial negotiations.

1.34      The other feature of this inquiry that the committee finds of concern is the manner in which the Senate became aware of Mr Hastwell’s view that he was influenced in his decision to withdraw from the fin-fish aquaculture inquiry. Had Mr Hastwell indicated to the references committee that he felt under pressure to withdraw from the inquiry, both the references committee and, if necessary, this committee could have pursued the matter earlier. To have over a year elapse before the Senate was made aware of Mr Hastwell’s view has required a reliance on correspondence and memory and this may have compromised the committee’s ability to undertake its work. As a matter of practice the committee would encourage those who feel unable to provide evidence to a Senate committee inquiry because of outside pressure to inform that committee of the circumstance so that the facts can be established contemporaneously.

Conclusion and recommendation

1.35      On the evidence before it the committee is unable to conclude with any certainty that there was any attempt to improperly influence a witness before the Environment and Communications References Committee and it recommends to the Senate that a contempt should not be found.

(Senator the Hon. Jacinta Collins)
Chair

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