Chapter 1 - Report


Reference

1.1 On 25 October 2022, the President made a statement to the Senate noting that Senator Thorpe had raised a matter of privilege regarding whether her failure to declare a friendship with Mr Dean Martin to the Parliamentary Joint Committee on Law Enforcement amounted to an improper interference with the work of the committee. Senator Thorpe had requested that the matter be referred to this committee for investigation as a possible contempt.1

1.2 It is unusual for a senator to seek to refer her own conduct to the Committee of Privileges and, in some respects, the referral of this matter departed from the usual practice where matters of privilege relate to a committee. In particular, allegations of misconduct relating to a committee are normally first referred to the committee concerned for investigation. The President noted in her statement that:

While I have considered writing to the joint committee, I have concluded that there are some mitigating factors—in particular, the committee in question was a committee of the previous parliament, with different membership and a different chair. …[I]t is also unusual for a senator to seek to self-refer a matter of privilege. In those circumstances, I have concluded that the Senate should be given the earliest opportunity to determine whether the matter warrants investigation by the Privileges Committee. If the Senate refers the matter to the Privileges Committee, no doubt it will follow its usual practice of seeking submissions from those affected by the allegations, which will necessarily require it to seek information from Senator Thorpe and from the joint committee.2

1.3 The Senate immediately considered and agreed the following motion:

  1. The Senate notes:
    1. the matters canvassed in the media regarding a possible conflict of interest between an undeclared personal relationship of Senator Thorpe and her role while a member of the Joint Committee on Law Enforcement; and
    2. the importance of maintaining the integrity of parliamentary committees.
  2. The following matter be referred to the Standing Committee on Privileges for inquiry and report, whether Senator Thorpe's failure to declare the relationship:
    1. obstructed the work of the Joint Committee on Law Enforcement;
    2. if so, whether this amounted to an improper interference with the work of the committee; and
    3. whether any contempt was committed in this regard.

Inquiry process

1.4 The usual practice of Presidents has been to ensure that privilege matters related to committee inquiries have first been investigated by the committee concerned. However, for the reasons set out in the President's statement, this preliminary step did not occur in this case. As a result, the committee wrote to the Chair of the Parliamentary Joint Committee on Law Enforcement (the joint committee) to seek information on matters relevant to the inquiry. 

1.5 The committee also wrote to Senator Thorpe asking her to provide a detailed response to the matters canvassed in the media regarding a possible conflict of interest between her undeclared personal relationship and her membership of the joint committee as well as seeking her response to some specific questions.

1.6 The committee received two submissions to the inquiry from the joint committee and Senator Thorpe. The letters from the committee and the submissions received in response are at appendix 1.

Background

1.7 The inquiry relates to media reports that Senator Thorpe failed to disclose a relationship with Mr Dean Martin to the joint committee. Senator Thorpe was a member of the joint committee from 2 February 2021 to 11 April 2022.3 The media reports suggested Mr Martin is a former member of an outlaw motorcycle gang (OMCG) and that the joint committee was conducting an inquiry, or held briefings, which examined matters related to such gangs.

1.8 In summary, the media reports made the following assertions:

  • Senator Thorpe did not declare a relationship with Mr Dean Martin, while she was a member of the Parliamentary Joint Committee on Law Enforcement.4
  • Mr Martin is a former member of the Rebels outlaw motorcycle gang (OMCG) which has "…strong links to the drugs trade".5
  • The joint committee was conducting an inquiry, or held briefings, which examined matters related to such gangs.6 More specifically, that committee members, including Senator Thorpe, were briefed and received confidential documents on the AFP strategy to monitor gangs as part of an inquiry into the online trading of illicit drugs.7
  • Staff in Senator Thorpe's office raised these matters with her, the office of the leader of the Australian Greens and the Parliamentary Workplace Support Service.8
  • Senator Thorpe advocated, through questions asked at an estimates hearing, for the release from immigration detention of an alleged member of the Rebels motorcycle gang (Mr Jack Hobson), due to his Indigenous heritage.9

Role of the committee

1.9 As the committee has noted in recent reports on possible contempts, its role in such inquiries is to establish the facts of matters referred to it and to make findings and recommendations. The committee does not determine whether a contempt has been committed and, if so, whether to impose a penalty for that contempt. The committee may make recommendations on those matters but they are for the Senate as a whole to determine.10

Criteria for a finding of contempt

1.10 Section 4 of the Parliamentary Privileges Act 1987 restricts the category of acts which may be treated as contempts by providing that: conduct does not constitute an offence against a House unless it amounts, or is intended or likely to amount to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.11

1.11 In considering whether a contempt may have occurred, the committee is also required to apply the three criteria in Privilege Resolution 3. In the circumstances of this inquiry, that resolution requires the committee to consider the following three criteria:

  1. The first criterion reserves the contempt powers of the Senate for matters involving substantial obstruction of a committee performing its functions.
  2. The second criterion relates to whether there is any other remedy available and recognises that the Senate will be reluctant to deal with conduct as a contempt where there is alternative, more appropriate, remedy.
  3. The third criterion relates to the culpability of the person alleged to have committed a contempt and requires the committee to consider whether:
    1. the person knowingly committed the act which may constitute the contempt; and
    2. if so, whether he or she had any reasonable excuse for doing so.

1.12 Privilege Resolution 6 provides guidance on the types of acts which may be treated by the Senate as a contempt and relevantly provides that a person shall not improperly interfere with the free exercise by a committee of its authority.12 In addition, the rules of the Senate preclude a senator sitting on a committee where the senator has a conflict of interest in relation to the inquiry of the committee.13

1.13 As well as considering the statutory threshold for conduct to constitute a contempt and the guidance provided by the Privilege Resolutions, the committee had regard to the precedents provided by its earlier reports on matters giving rise to allegations of contempt, and the action taken by the Senate in relation to those reports.

Consideration of matters

Substantial obstruction

1.14 The motion referring the matter to the committee directed it to examine whether Senator Thorpe's failure to declare the relationship obstructed the work of the joint committee and, if so, whether this amounted to an improper interference with the work of the committee. In doing so, the committee examined not just the specific impact of the failure to declare the personal relationship but also whether there was a wider impact on the operation of the joint committee. 

1.15 The joint committee advised that it had no evidence that Senator Thorpe had declared or raised a possible conflict of interest in relation to a personal relationship during the time she was a member of the committee.14 Senator Thorpe accepted in her submission that she should have declared this possible conflict:

…I should have disclosed my connection to Mr Martin to the Joint Committee and to my Party Leader, Adam Bandt. I regret the mistake I made and as a result I resigned as the Greens' Deputy Leader in the Senate.15

1.16 Senator Thorpe outlined the procedures followed in her office for handling of confidential committee documents including their destruction or disposal in confidential document bags when no longer required. She advised that:

I treated in confidence all confidential information I received as part of the Parliamentary Joint Committee on Law Enforcement.16

1.17 Senator Thorpe also specifically refuted any suggestion that she had provided joint committee documents to Mr Martin, discussed matters related to the committee with him or pursued any matter on his behalf through the committee.17

1.18 The joint committee provided a detailed account of its activities during the period Senator Thorpe was a member and noted:

…the committee did not conduct an inquiry specifically focussed on OMCGs during the period Senator Thorpe was a member of the committee. However, OMCGs or organised crime were mentioned in evidence for all inquiries either in submissions or at public hearings.18

1.19 The joint committee advised that some of the claims in media reports about in-camera documents and information that Senator Thorpe had access to as a member of the committee were incorrect.19 Specifically, the joint committee noted that:

The committee wishes to address media reporting which claimed that Senator Thorpe attended a private briefing at the AFP headquarters in May 2021 and implied that this was for [a] significant police operation ie. Operation Ironside. While it is true that Senator Thorpe did attend a private briefing in May 2021, the briefing covered issues relevant to the new vaccine fraud inquiry and other matters which led the committee to commence its inquiry into law enforcement capabilities in relation to child exploitation. There was a subsequent private briefing on Operation Ironside but this occurred well after the operation had been made public and Senator Thorpe did not attend the briefing and nor did she request a copy of the transcript.20

1.20 In light of the evidence it received, the committee did not consider it necessary for the purposes of this inquiry to establish whether Mr Martin in fact has any ongoing association with the Rebels outlaw motorcycle gang.

Possible wider impact on the joint committee

1.21 The committee also examined the wider question of whether these events might impede the joint committee performing its statutory oversight role by undermining the confidence of law enforcement bodies in the capacity of the joint committee to appropriately handle sensitive information. In particular, the joint committee was asked whether it had any evidence that law enforcement bodies were now reluctant to provide information to the committee. The joint committee responded that:

In the month since Senator Thorpe's personal relationship came to light, the committee has not observed any reluctance of the law enforcement bodies it oversees to provide sensitive documents or evidence to the committee.21

1.22 Further the joint committee advised that it had written to law enforcement agencies and organisations inviting them to raise any issues of concern in relation to information they had provided to the committee:

In responses received by the committee, the organisations did not raise any specific concerns in relation to the information they provided to the committee during the time that Senator Thorpe was a member.22

1.23 Summarising its investigation of these matters, the joint committee advised:

As the committee was not aware of Senator Thorpe's relationship, it follows that the committee cannot say that Senator Thorpe's failure to declare her relationship obstructed its work or improperly interfered with its operations during the previous parliament. The committee's review of its processes and information that Senator Thorpe had access to during her membership of the committee has not indicated any breach of the committee's processes.23

1.24 The committee thanks the joint committee for its thorough and comprehensive investigation of this matter.

Other remedies

1.25 The committee accepts that this matter relates to alleged conduct which, if proven, could only be addressed by the Senate exercising its power to determine and punish contempts.

1.26 Media coverage of this matter was clearly intended to suggest that Senator Thorpe had utilised her membership of the joint committee to further the interests of an outlaw motorcycle gang. A senator using his or her position on a committee to access sensitive information from law enforcement agencies in order to further the interests of a criminal organisation would be amongst the most serious possible contempts. To the extent that it was conduct forming part of the proceedings of the Parliament, it could only be sanctioned by the Senate.

1.27 However, the evidence to the committee demonstrates that the media coverage of this matter was inaccurate in some important respects. In particular, the implications that Senator Thorpe used her position inappropriately or even had access to information of the type speculated about in the media coverage is not borne out.

1.28 Nevertheless, senators should exercise caution in relation to the possibility of direct conflicts of interest and also the perception that their personal relationships may conflict with their official duties. While senators have the guidance of the Senate's resolutions on declaration of financial interests and gifts, much is left to their good judgement in relation to the declarations of personal relationships which may be perceived to conflict with their official duties.

1.29 Apart from a change to meeting practices for committees discussed below, the committee does not propose changes to the procedures for senators declaring conflicts arising from personal relationships. However, the committee suggests that senators take a scrupulous approach to such matters and, where they are in any doubt, seek the advice of their colleagues or the Clerk.

Culpable intention

1.30 As a result of its findings in relation to other criteria, the committee considered that it was unnecessary for it to consider the issue of culpable intention.

Findings and conclusion

1.31 The committee is of the view that Senator Thorpe should have declared her relationship with Mr Martin to the joint committee as a potential conflict of interest with her work on the committee. It was possible that she would receive sensitive material of interest to outlaw motorcycle gangs through her work on the joint committee. However, on the basis of the evidence provided by the joint committee and Senator Thorpe, the committee is satisfied that no disclosure of such material has occurred and that the operations of the joint committee have not been impeded. The committee therefore concludes that a contempt should not be found in relation to the matters referred to it.

1.32 The committee emphasises the need for senators to be aware of their responsibilities to perform their roles in the public interest, to declare any possible conflicts and to comply with the requirement in the standing orders not to sit on a committee where the senator has a conflict of interest in relation to the inquiry. Transparency in relation to such matters serves to resolve most issues and is critical to maintaining the confidence of submitters and witnesses in the integrity of committee proceedings. To support a more consistent approach to these matters, the committee recommends that declarations of any conflicts of interest should be a standard agenda item at all private meetings of committees.

1.33 Finally, the committee queries whether a more straightforward approach to this matter would have been for Senator Thorpe to make a statement to the Senate in relation to the media speculation concerning her relationship and its possible intersection with her work on the joint committee. The Senate routinely gives leave to senators to make such personal explanations.24

Recommendation 1

1.34 The committee recommends that committee chairs include declarations of any conflicts of interest as a standard agenda item for all private meetings of committees.

Recommendation 2

1.35 The committee recommends that the Senate adopt the conclusion at paragraph 1.31, that no contempt be found in relation to the matters referred.

Senator Slade Brockman
Chair

1 Senate Hansard, 25 October 2022, p. 1.
2 Senate Hansard, 25 October 2022, p. 1.
3 Parliamentary Joint Committee on Law Enforcement, Submission 1, p. 1.
4 Jade Gailberger, Clare Armstrong, James Morrow, "Lidia Thorpe resigns from Greens leadership team", Herald Sun, 21 October 2022.
5 Editorial, "Lifting the Lidia on a clear case of obvious conflict", The Daily Telegraph, 21 October 2022, p. 30.
6 Editorial, "Lifting the Lidia on a clear case of obvious conflict", The Daily Telegraph, 21 October 2022, p. 30; Jake Evans and Andrew Probyn, "Greens senator Lidia Thorpe admits to undisclosed relationship with ex-Rebels president Dean Martin while on law enforcement committee", ABC News, 20 October 2022.
7 Greg Brown and Paige Taylor, "Indigenous calls to dump Greens senator over bikie relationship", The Australian, 21 October 2022, p. 1.
8 Jake Evans and Andrew Probyn, "Greens senator Lidia Thorpe admits to undisclosed relationship with ex-Rebels president Dean Martin while on law enforcement committee", ABC News, 20 October 2022.
9 James Massola and Lisa Visentin, "Lidia Thorpe quizzed Home Affairs boss about suspected Rebel bikie", Sydney Morning Herald, 22 October 2022.
10 Committee of Privileges, 181st report, p. 1; and 182st report, p. 1.
11 Committee of Privileges, 150th report, p. 20; and 181st report, p. 4.
12 Privilege Resolution 6(1).
13 Standing order 27(5).
14 Submission 1, p. 1.
15 Senator Thorpe, Submission 2, p. 1.
16 Submission 2, p. 1.
17 Submission 2, p. 2.
18 Submission 1, p. 3.
19 Submission 1, p. 4.
20 Submission 1, p. 4.
21 Submission 1, p. 5.
22 Submission 1, p. 5.
23 Submission 1, p. 6.
24 Standing order 190.