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5721T460.Pdf SPEAKER’S RULING - ALLEGED DELIBERATELY MISLEADING THE HOUSE On 10 December 2020, the Member for Maroochydore wrote to me alleging that the Premier deliberately misled the House on 28 February 2017. The matter relates to a statement made by the Premier in response to a question asked without notice by the Member for Chatsworth, specifically, ‘Does the Premier have a private email account? Has she ever used it for official purposes?’ to which the Premier answered, ‘Yes and no’. The Member alleges that this statement is misleading because an email dated 22 April 2015, shown to the Premier during Estimates Hearings on 7 December 2020, was purportedly sent from the personal email address of Minister for Transport and Main Roads, Hon Mark Bailey MP, to the email address ‘[email protected]’ for an official purpose. The Premier stated during the estimates hearing that this was an email account she had used. On 15 December 2020, the Member wrote to me providing supplementary information concerning the allegation, arising from the Estimates Hearing on 14 December 2020. The Member suggested that information provided at the hearing by the Crime and Corruption Commission (CCC) Chair Mr Alan MacSporran concerning the CCC’s investigation into Minister Bailey’s personal email account supports the allegation the Premier’s statement was misleading because it appears more than one email has been sent to the personal account ‘stacial @bigpond.com’. I wrote to the Premier seeking a response to the allegation. The Premier responded on 27 January 2021 arguing that her statement was not misleading as she believed it to be factually correct and honest in the LAID UPONTHETABLE OF TH E HOUSE No: 15 APR 2021 Clerk's Signature: context of the question, and with the information that was within her personal knowledge at the time. On 26 February 2021, the Parliamentary Crime and Corruption Commission (PCCC) held a public meeting with the Crime and Misconduct Commission. During the course of questioning at the Hearing the CCC Chair acknowledged that it could be argued that the email dated 22 April 2015 has a component of government business. In addition, at the PCCC hearing it was established that there were four e-mails to the Premier’s private e-mail accounts provided to the CCC during the investigation of Minister Bailey’s use of private e-mails. Further to this, it was established that there were two private e-mail accounts that the Premier used in relation to e-mail exchanges between herself and Minister Bailey. On 26 February 2021, the Member for Maroochydore wrote to me suggesting that I refer to the transcript of the PCCC hearing of that day to assist me in this matter. On 8 March 2021, the Member for Maroochydore again wrote to me referring me to a press conference on 2 March 2021 where the Premier was asked about e-mails containing government business in her private e-mails accounts. On 9 March 2021, the Premier rose in the House on a Matter of Privilege and made a short statement which confirmed that there were four of her private e-mails identified in the examination of Mr Bailey’s e-mails by the CCC. The Premier also advised the House that she had sought the advice from the Solicitor-General as to whether the four emails are ‘public records’ within the meaning of the Public Records Act 2002 and tabled the Solicitor-General’s advice. The Premier advised the House that the Solicitor-General advice is that the e-mails either do not satisfy the requirement of a record or would be exempt with the exception outlined in that Act. On the same day the Premier subsequently wrote to me providing a copy of the Solicitor­ General’s advice. On 12 March 2021, the PCCC published a letter from the Chairperson of the CCC dated 9 March providing copies of the remaining three e­ mails between Minister Bailey’s private e-mail address and the Premier’s private e-mail addresses. On 19 March 2021,1 again wrote to the Premier providing the letter from the Chair of the CCC of 9 March 2021 and offered the Premier with the opportunity to make any further submissions in relation to this additional information. On 14 April 2021, the Premier wrote to me and advised that in response to the Question from the Member for Chatsworth on 28 February 2017, her honest belief in answering the question at the time was that the correct answer was “no”. The Premier acknowledged that there might be differing interpretations of what is meant by “official purposes” and sought to clarify that if her answer caused confusion or misinterpretation it was unintentional. The Premier noted that words can mean different things to different people and there was no intention on her part to mislead. There are three elements to be established when it is alleged that a member has committed the contempt of deliberately misleading the House: • first, the statement must, in fact, have been misleading; • secondly, it must be established that the member making the statement knew at the time the statement was made that it was incorrect; and • thirdly, in making it, the member must have intended to mislead the House. The first limb of the first element is whether the person’s statement contained factually or apparently incorrect material. Having considered all the material before me, I am the view that it is this question which is critical to my consideration in this matter. On the information provided, the Member for Maroochydore argued the Premier’s statement to be factually incorrect because its contents concern possible Directors General (DG) appointments and thus, use of a private email for official purposes. In addition, the Member drew my attention to the PCCC hearing transcript of 26 February 2021 where Mr MacSporran opined that it could be argued that the e-mail of 22 April 2015 has a component of government business. It should also be noted from the transcript of the CCC hearing that Mr MacSporran described the rationale for the CCC providing the four e­ mails back to the Department of the Premier and Cabinet was on the basis that they were public records, albeit with the caveat that the CCC were right in such an assessment. In response, the Premier submitted that the Member provides no evidence or argument as to how the Premier’s statement is misleading. The Premier further contended that the email does not advocate for Mr Simshauser as DG, but discusses ascertaining his ‘ideological perspective’ concerning renewable energy and refers to Labor’s ‘platform’, and on this basis it is political in nature rather than official business of government. However, in my view, even if one was to accept the argument that the email does not advocate for Mr Simshauser as DG, the issue of the reference to the Queensland Productivity Commission (QPC) and a potential appointment to that public entity remains. The Premier also initially argued that information provided during Estimates Hearings by the CCC Chair infers that the emails were not for ‘official purposes’, including that Mr MacSporran stated the email in question did not change the CCC’s view about the outcome of the original investigation into Minister Bailey’s private email use. Again, I find this argument is difficult to sustain in light of the subsequent evidence of Mr MacSporran at the PCCC hearing of 26 February 2021. The Premier’s central argument in relation to all four e-mails is that the emails were not sent or received in her capacity as Premier but rather as a member of the Australian Labor Party. The Premier argues that the Solicitor-General’s advice is definitive in that it identifies that the four e-mails either do not satisfy the technical legal requirement of a ‘record’ or would be exempt from the operation of the Public Records Act 2002 due to the party political activity exception in that Act. The allegation before the House is that the Premier mislead the House by stating that she didn’t use her private e-mail account for “official purposes”. In relation to Email No. 3, I cannot see anything in this e-mail which would give rise to a classification of official business as it merely reflects a Minister keeping the Premier informed of international developments in relation to battery storage. In relation to Emails Nos.1, 2 and 4, on the one hand, I can see that a reasonable person could argue that there were components of the e­ mails that could be classified as for official purposes as per the commentary of the Chair of the CCC and the State Archivist’s review. However, on the other hand, I can also see how a reasonable person could equally validly classify these e-mails as party political activity. I have given this a great deal of reflection, and in my considered view, this is a question of semantics which comes down to the subjective and personal classification of what the person answering the question at the time might constitute official purposes. I note from numerous previous Ethics Committee reports that David McGee in Parliamentary Privilege in New Zealand (third edition, 2005, at 654) notes that remarks made off the cuff in a debate can rarely fall into the category of deliberate misleading. In considering whether a matter should be referred to the Ethics Committee under Standing Order 269(4), I am required to take account of the degree of importance of the matter which has been raised and whether an adequate apology or explanation has been made in respect of the matter.
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