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ETHICS COMMITTEE Report No. 140 Matter of Privilege Referred by the Speaker on 25 October 2012 Relating to an Alleged Deliberate

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ETHICS COMMITTEE Report No. 140 Matter of Privilege Referred by the Speaker on 25 October 2012 Relating to an Alleged Deliberate .• ETHICS COMMITTEE Report No. 140 Matter of privilege referred by the Speaker on 25 October 2012 relating to an alleged deliberate misleading of an Estimates Committee by a Chief Executive Officer Introduction and background 1. The Ethics Committee (the committee) is a statutory committee of the Queensland Parliament established under section 102 of the Parliament of Queensland Act 2001 (the POQA or the Act). The current committee was appointed by resolution of the Legislative Assembly on 17 May 2012. 2. The committee's area of responsibility includes dealing with complaints about the ethical conduct of particular members and dealing with alleged breaches of parliamentary privilege by members of the Assembly and other persons. 1 3. The matter in this report concerns an allegation that Mr Michael Caltabiano, then Director­ General of the Department of Transport and Main Roads, deliberately misled the Transport, Housing and Local Government Committee during an Estimates Committee hearing on 18 October 2012. 4. In accordance with Standing Order 269, on 24 October 2012 the Hon Scott Emerson, Minister for Transport and Main Roads (the Minister), wrote to the Speaker requesting that the Speaker refer the matter to the committee. The Speaker referred the matter to the committee on 25 October 2012. 5. Also on 25 October 2012, the Speaker received a letter from the Leader of the Opposition, Ms Annastacia Palaszczuk MP, regarding the same matter. The Speaker referred this letter to the committee on 25 October 2012. 6. As part of the Speaker's process, copies of the letters Madam Speaker received from the Minister and the Leader of the Opposition were provided to Mr Caltabiano. 7. On 26 October 2012, the committee received a letter from the Chair of the Transport, Housing and Local Government Committee, Mr Howard Hobbs MP, forwarding correspondence received by that committee in relation to the matter. The forwarded correspondence was a letter from Mr Caltabiano dated 24 October 2012. 8. On 29 October 2012, the committee was notified by the Crime and Misconduct Commission (CMC) that it was undertaking a related investigation. In response, and exercising an abundance of caution approach which has been the custom and practice of past Ethics 1 5 .104B Parliament of Queensland Act 2001. Page 1 Committees, the committee resolved to suspend its inquiry pending advice from the CMC as to the outcome of its investigation. As a consequence of this decision, the committee returned a submission provided to the committee by Mr Caltabiano's solicitors, Gilshenan & Luton, dated 28 November 2013. 9. The committee subsequently decided to recommence its inquiry into this matter. The rationale for this decision was the subject of the committee's Interim Report No. 136 tabled on 12 September 2013. 10. The committee invited all three parties to provide a submission to the committee. The committee received a submission from Mr Caltabiano through his solicitors, Gilshenan & l . Luton, on 30 September 2013. No additional information was received from the Minister or the Leader of the Opposition. 11 . During the course of its inquiry, the committee received material from the CMC and Mr Caltabiano. 12. At the time the CMC provided material to the committee, the CMC's investigation relating to Mr Caltabiano had been finalised. 13. Included in the material provided to the committee by the CMC were statements given to the CMC and transcripts of interviews conducted by the CMC. 14. Given the basis upon which some of this material was obtained by the CMC, the committee has been cautious in its use and publication and has consulted the CMC in respect to any references to CMC material in this report. The referral 15. After referring the matter to the committee, the Speaker made the following statement in the House: Honourable members, I inform the House that on 24 October 2012 I received correspondence from the Minister for Transport and Main Roads concerning the evidence given by the director-general of his department to the estimates hearing of the Transport, Housing and Local Government Committee on 18 October 2012. This matter has been the subject of considerable public attention and I do not propose to go into the details of the matter except to say that, after considering the matter on 25 October 2012, I referred the matter to the Ethics Committee. Following my referral, I also received correspondence from the Leader of the Opposition regarding the same matter. I have forwarded this correspondence to the committee. I draw to the attention of members that, as this matter is now before the committee, standing order 271 now applies and the matter should not be referred to in the Assembly. 2 Definition of contempt •. 16. Section 37 of the POQA defines the meaning of "contempt" of the Assembly as follows: (1) "Contempt• of the Assembly means a breach or disobedience of the powers, rights or immunities, or a contempt, of the Assembly or its members or committees. (2} Conduct, including words, is not contempt of the Assembly unless it amounts, or is intended or likely to amount, to an improper interference with- ( a) the free exercise by the Assembly or a committee of its authority or functions; or (b) the free performance by a member of the member's duties as a member. 2 Queensland Legislative Assembly, Record of Proceedings (Hansard), 30 October 2013, at 2142. Page2 Nature of the contempt of deliberately misleading the House 17. The Standing Rules and Orders of the Legislative Assembly: Effective from 31 August 2004 (the Standing Orders) provide that the Legislative Assembly may treat deliberately misleading the House or a committee (by way of submission, statement, evidence or petition) as a contempt.3 18. 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.4 19. The Ethics Committee of the 48th Parliament held that the term misleading is wider than "false" or "incorrect". That committee considered it " ... possible, although rare and unlikely, that a technically factually correct statement could also be misleading ... " by, for example, the deliberate omission of relevant information. 5 20. The Code of Ethical Standards: Legislative Assembly of Queensland emphasises to members that ". misleading is a wider concept than making incorrect statements. A totally factually correct statement can still be misleading."6 21. Previous ethics committees, and David McGee in Parliamentary Practice in New Zealand, have noted that the standard of proof demanded in cases of deliberately misleading parliament is a civil standard of proof on the balance of probabilities, but requiring proof of a very high order having regard to the serious nature of the allegations. Recklessness, whilst reprehensible in itself, falls short of the standard required to hold a member responsible for deliberately misleading the House.7 Establishing a prima facie case of possible contempt 22. The committee has established procedures for dealing with privileges references, which ensure procedural fairness and natural justice is afforded to all parties. These procedures are set out in Chapters 44 and 45 of the Standing Orders. The committee is also bound by the Instructions to committees regarding witnesses contained in Schedule 3 of the Standing Orders. 23. The committee found that it had sufficient material before it to deliberate on the matter. This material included the correspondence received from the Speaker, two letters from or on behalf of Mr Caltabiano, one of which was provided by the Transport, Housing and Local Government Committee as well as the material from the CMC and Mr Caltabiano. .· 24. The issues to be resolved in establishing whether the allegation, on the face of it, gives rise to a contempt are listed below. • Does the person's statement contain any apparent or proven factually incorrect matter? • Were any of the person's statements misleading? 3 Standing Order 266{2). 4 McGee, David, Parliamentary Privilege in New Zealand, third edition, Dunmore Publishing Ltd, Wellington, 2005, at 654-655. 5 MEPPC, Alleged Misleading of the House by a Minister on 14 November 1996, Report No. 4, Goprint, Brisbane, 1997, at 10. 6 Queensland Legislative Assembly, Code of Ethical Standards: Legislative Assembly of Queensland, Goprint, Brisbane, 2004, as amended 30 June 2006, 9 February 2009, 11 May 2009, at 25. 7 Note 5, at 654; MEPPC, Report on a Matter of Privilege - The Alleged Misleading of the House by a Minister on 20 October 1998, Report No. 27, Goprint, Brisbane, 1999 at 2. Page3 • (If yes), did the person know at the time the statements were made that they were misleading, and was it the person's intention to mislead the House? Does the person's statement contain any factually (or apparently) incorrect matter? 25. In his letter to the Speaker, the Minister notes that in evidence before the Estimates Committee on 18 October 2012, Mr Caltabiano was asked about his relationship with the Department of Transport and Main Roads Departmental Liaison Officers (DLOs). The relevant transcript of the Hearing is set out below: Ms PALASZCZUK: What levels are the current DLOs paid at? Mr Caltabiano: It is worthy stating that in March this year the department had two DLOs at an AOB/evel and four DLOs at an A061evel. To date, we have appointed one DLO at an AOB/evel and two DLOs at A061evel. Ms PALASZCZUK: Director-General, were any of these DLOs known to you personally or professionally prior to their appointments? Mr Caltabiano: One was, yes.
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