Possible interference with, or imposition of a penalty on, a witness before
the Legal and Constitutional Affairs References Committee
Background to the inquiry
1.1
On 10 September 2009, the following matter was referred to the
Committee of Privileges on the motion of the Chair of the Legal and
Constitutional References Committee, Senator Barnett:
Having regard to the report of the Legal and Constitutional
Affairs References Committee on a possible contempt in relation to a witness to
the committee’s inquiry into access to justice, whether there was any
interference with, or imposition of a penalty on, a witness before that
committee, or any threat or attempt to carry out those acts, and whether any
contempt was committed in that regard.[1]
1.2
The Legal and Constitutional Affairs References Committee ('the
references committee') had presented a report to the Senate on 8 September
2009, entitled A Possible Contempt in Relation to a Witness to the
Committee’s Inquiry into Access to Justice.[2]
In that report, the references committee gave an account of its dealings with a
witness who made a submission to that committee's inquiry into access to
justice, Ms Rowena Puertollano, and her then employer, the Aboriginal Legal
Service of Western Australia Inc (ALSWA).
1.3
After Ms Puertollano's submission was published on the references
committee's website, her employer, through the person of her supervisor, Ms
Katrina Carlisle, issued her with a written warning for serious misconduct in
making a submission, signed by Ms Puertollano as Coordinator of the Broome
Family Violence Prevention Legal Service (FVPLS), to the references committee.
1.4
Ms Puertollano took the correct action for any person in her
position, and contacted the references committee to report this consequence of
her having made a submission. At the direction of the references committee, its
secretary wrote to Ms Carlisle conveying the committee's view that this was a
possible contempt of the Senate, as well as a potential criminal offence,
recommending that the warning letter be withdrawn and seeking an assurance that
Ms Puertollano would suffer no disadvantage for having made the submission.
1.5
A response to this letter was provided by the Chief Executive
Officer of the ALSWA, Mr Dennis Eggington, who challenged the references committee's
conclusion that the warning letter could constitute a contempt but indicated
that the organisation was prepared to withdraw the warning letter.
1.6
A letter to Ms Puertollano withdrawing the warning letter was
prepared, sent and copied to the references committee but was not received by
Ms Puertollano who was no longer using the address to which it had been sent.
This was rectified after Ms Puertollano again contacted the committee secretary
to confirm what action the references committee had taken on her behalf.
Unfortunately, however, Ms Puertollano also advised that she had tendered her
resignation from ALSWA.
1.7
The references committee resolved to raise a matter of privilege
because it was not satisfied as to the acceptance by the ALSWA of its warning
that a possible contempt had occurred. It was also concerned by the terms of
the ALSWA's letter withdrawing the warning letter which continued to insist
that Ms Puertollano was 'bound by the "Responsibility of Staff"
provisions in the ALSWA Policy and Procedures Manual with respect to
communications in your capacity as an employee of ALSWA', although no action
would be taken against her as a consequence of evidence given to the references
committee 'in a private capacity'.[3]
According to the references committee, this qualification indicated that the
ALSWA had 'not resiled from its original views about its rights to control the
flow of information to the committee and to discipline staff members who give
evidence to committees without authorisation'.[4]
1.8
Accordingly, the chair of the references committee, Senator Barnett,
raised a matter of privilege under standing order 81 with the President of the
Senate, Senator the Hon. J Hogg, who gave precedence on 9 September 2009 to a
notice of motion referring the matter to this committee.[5]
In a statement to the Senate when giving precedence to the notice of motion,
Senator Hogg referred to past declarations of this committee that:
... interference with and penalisation of witnesses are the most
serious of all contempts, and the committee and the Senate have always regarded
such actions as requiring rigorous investigation and firm remedial action. The
committee has pointed out that actions which are otherwise lawful, such as the
dismissal of an employee, may constitute contempts when taken against a witness
in consequence of the witness’s evidence.[6]
Conduct of the inquiry
1.9
Following receipt of the reference, the committee wrote to Ms
Puertollano and to the Chief Executive Officer of the ALSWA, Mr Dennis
Eggington (also on behalf of Ms Katrina Carlisle), inviting them to respond to
the terms of reference and seeking other particular information from each.
Copies of these letters are published in Appendix 1.
1.10
Both Ms Puertollano and Mr Eggington responded within the requested timeframe
and copies of their responses are also published in Appendix 1.
1.11
Mr Eggington's submission helpfully set out the history of the ALSWA
and how the Broome Family Violence Prevention Legal Service had come under its
auspices. The former 'auspicing' body had been the Kullari Indigenous Women's
Aboriginal Corporation Committee of which Ms Puertollano had been the Chief
Executive Officer. With the transfer of the Broome FVPLS to the ALSWA, Ms
Puertollano became an employee of the ALSWA.
1.12
Mr Eggington also gave an account of the issuing and withdrawal of
the warning letter to Ms Puertollano, indicating that it was not intended to
interfere with the evidence gathering function of the references committee or
with Ms Puertollano's freedom to participate in the inquiry. There were
concerns that Ms Puertollano's submission was critical of the new arrangements
and that, although the references committee concluded that Ms Puertollano was
not attempting to put forward her views as representing the FVPLS, there were nonetheless
in her submission multiple references to her experience and position as
coordinator with the Broome FVPLS.
1.13
When the references committee raised the issue of possible contempt,
the ALSWA:
... took issue with the fact that
the warning letter constituted a contempt. However, we:-
- stressed
that the warning letter was in no way intended to inhibit the freedom of Ms
Puertollano to express her personal views;
- stressed
that the letter was not intended to obstruct the LCARC [the references committee]
in the performance of its functions;
- apologised
if the warning letter created an impression contrary to that referred to in (a)
and (b) above;
- stated
that we proposed to withdraw the warning letter, and confirm in writing to Ms
Puertollano that we in no way sought to inhibit her contributing to the Access
to Justice Inquiry – but reminding her that she should make clear that she was
doing so based on her own views and not as a representative of ALSWA.[7]
1.14
Mr Eggington then repeated the apology to this committee. In
response to the references committee's concerns that the terms of the
withdrawal letter did not sufficiently acknowledge the breadth of the Senate's
Privilege Resolutions, Mr Eggington assured the committee that he had not
sought to justify an erroneous position.
1.15
In addressing the question whether the committee should find that a
contempt had been committed on this occasion, Mr Eggington drew attention to
the absence of any culpable intention on his or Ms Carlisle's part to interfere
with the references committee's conduct of its inquiry. Rather, their concern
was:
... to act in the best interests of ALSWA at a time when our
auspicing of the Broome FVPLS (on request from the AGD) was in its infancy. We
intended to act pursuant to and in accordance with the terms of an employee's
contract of employment. Crucially, our concern was with the capacity in which
Ms Puertollano made her submission, not the fact that she was contributing
evidence per se.[8]
Mr Eggington concluded his submission by reiterating the
references committee's view that there was a need for clearer guidance in this
difficult area.
1.16
It is apparent to the committee from Ms Puertollano's submission
that she had experienced significant difficulties in adapting to the new
arrangements which she attributed to the 'metro-centric' structure of the ALSWA
compared with the Kimberly structure of the former arrangements. She listed
numerous areas of difficulty in trying to ensure that appropriate services were
delivered to female clients who had been victims of domestic violence or abuse.
1.17
Ms Puertollano also informed the committee that she had not received
any official induction about the ALSWA's employment policies until the
telephone call from Ms Carlisle, preceding the warning letter, informed her of
her alleged misconduct.
1.18
It appears that Ms Puertollano felt that her continued employment
with the ALSWA was untenable and that the warning letter brought to a head the
tensions that Ms Puertollano had experienced under the new arrangements.[9]
Consideration of issues
1.19
It is quite clear on the facts available to the committee that the
ALSWA issued a warning letter to Ms Puertollano as a direct consequence of her
submission to the references committee. This action by the ALSWA was wrong in
all the circumstances. As noted by the references committee in its report, it
is irrelevant whether Ms Puertollano's submission was made in a private or
official capacity. The references committee went on to conclude:
When giving evidence to a Senate committee, an individual's
employment conditions, policies and guidelines, including confidentiality
agreements however described are of no effect and the witness must be able to
assist the committee in complete freedom, and without suffering any
disadvantage as a consequence, regardless of whether the evidence was given in
an official or a private capacity. The committee felt that this essential
principle has not been understood by the ALSWA and its universal application
needs to be restated.[10]
1.20
This committee concurs. Under the law of parliamentary privilege,
proceedings in parliament ought not be questioned or impeached in any place
outside parliament. These are the terms of Article 9 of the Bill of Rights
1689, incorporated into Commonwealth law by section 49 of the Constitution and
further declared by section 16 of the Parliamentary Privileges Act 1987.
1.21
A person who makes a submission to a committee is participating in
proceedings in parliament and that participation therefore attracts all the
protections conferred by Article 9 of the Bill of Rights and section 16 of the
Parliamentary Privileges Act. Senate Privilege Resolution 6, made pursuant to
section 50 of the Constitution, articulates conduct which may offend that
protection by being intended to amount, or amounting or likely to amount, to an
improper interference with the free exercise by a House or committee of its
authority or functions. Such conduct includes interference with witnesses or
molestation of witnesses.[11]
1.22
Time and again, this committee has declared that it regards the
protection of witnesses as constituting the single most important duty of the
Senate (and therefore of the committee as its delegate) in determining possible
contempts.[12]
1.23
Unfortunately, this is not an isolated case and the committee agrees
that it would be useful to set out clear guidance 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.
1.24
There is a very simple remedy available to any employer or
professional organisation or any other body whose staff or members may make
submissions to a parliamentary committee that do not accord with the official
policy or practices of the organisation. The remedy is for that body to make
its own submission to the committee in question, dissociating itself from the
submission of the individual and indicating that the views expressed by the
individual are not the official views of the organisation. Under no
circumstances is it acceptable, as occurred in this case, for the organisation
to take the matter up with the individual directly and threaten disciplinary
action as a result of the individual's communication with the committee.
Conclusion
1.25
On the evidence before it, the committee concludes that the issuing
of a warning letter by the ALSWA was a direct consequence of Ms Puertollano's
submission to the references committee. However, the committee accepts that
there was no culpable intention on the part of the ALSWA to interfere with the
conduct by the references committee of its inquiry into access to justice. In
these circumstances, the committee has concluded that no contempt
should be found. The committee reiterates that Ms Puertollano was entitled
to make a submission to the references committee and that she did the right
thing in informing that committee of the actions her employer took as a
consequence. It regrets that she found that she was unable to continue working
for the ALSWA and resigned before this matter was concluded.
1.26
The committee also makes the suggestion that the Chairs' Committee,
established under standing order 25(10), may care to examine the standard
information provided to persons intending to make submissions to Senate
committees and to consider whether it adequately addresses this issue.
Recommendation
The committee recommends:
- that the Senate endorse the finding in paragraph 1.25 of the
report; and
- 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.
Senator George Brandis
Chair
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