.• 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 Parliament established under section 102 of the 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.

Ms PALASZCZUK: In your previous answer you said that one of the DLOs was known to you either personally or professionally. How were they known to you-personally or professionally? Mr Caltabiano: Personally. Ms PALASZCZUK: Personally. And did you work with any of them in the past at all? Mr Caltabiano: I had no previous professional working knowledge or experience of them in the past.

26. The Minister's letter goes on to indicate that there have been subsequent media reports relating to a prior professional relationship between Mr Caltabiano and a Department Liaison Officer, Mr Ben Gommers and is concerned that 'these reports raise a prima facie case that Mr Caltabiano may have misinformed the committee.· 27. The Minister's letter further notes that: ...media reports have indicated that Mr Caltabiano was listed on a website for lobbying firm Entree Vous along with Mr Gammers in the past. The media reports have also published a copy of a business card that Mr Caltabiano may have distributed. Furthermore, there is a lobbyist register that includes Mr Caltabiano and Mr Gommers listed to carry out lobbying activities on behalf of the firm at the same time ....

28. Attached to the Minister's letter to the Speaker is an extract from the Australian Government Lobbyists Register as at 18 July 2009 which identifies Mr Caltabiano and Mr Gommers as two of four persons listed to conduct lobbying activities for Entree Vous. Also attached is what appears to be an archived/cached web page of Entree Vous which describes Mr Gammers as 'Company Director/Management/Research' and Mr Caltabiano as 'Government & Media Relations Consultant'. 29. In her letter to the Speaker dated 25 October 2012, the Leader of the Opposition made similar ·. observations to the Minister as per above. In addition, the Leader of the Opposition noted that the business card in question described Mr Caltabiano as a Managing Partner of Entree Vous. 30. In his letter to the Transport, Housing and Local Government Committee dated 24 October 2012, Mr Caltabiano stated as follows: Let me be very clear, the answer provided to the committee was absolutely accurate and correct in all respects. I had no professional relationship with the Senior Departmental Liaison officer (SOLO) appointed to the role in April/May 2012. I had met this person on a couple of occasions in a social setting some years ago, hence my reply to the committee that I had a personal relationship, despite being very limited and infrequent contact.

I have also attached to this reply a copy of a letter from the accountant to Entree Vous that clearly outline the facts that support my statement that while I assisted in the

Page 4 establishment of the firm I had no paid role, was not employed, signed no contracts and had no involvement beyond the establishment of the firm and the introduction of some clients in late 2006 and early 2007 totalling some six weeks of engagement to assist the firm.

I acknowledge that the person who has been appointed to the role of SOLO was a director of Entree Vous in 2006, which was unknown to me at the time, but I did not meet him personally until 2009, thus no relationship neither professional nor personal existed prior to this time. Clearly the remnants of web site activity and the carry over of my name on lobbyist register could lead to the wrong conclusion to be drawn if the ! a facts were not thoroughly checked but this still does not diminish the fact that I had no professional relationship with the SOLO appointed for the Department as I stated at the Estimates Committee meeting. Whilst the media reporting of these matters can lead members of the public and the Parliament to be mislead about the facts surrounding these issues the facts reinforce my statements.

31 . The letter in support from the Accountant to Entree Vous, Tom Coogan, supplied by Mr Caltabiano and referred to in the preceding paragraph provides: was appointed Director and Secretary of the Company and Ben Gammers ("Ben'1 a director of the Company at the time of Incorporation and continued in those roles until the sale of the Company on 3 August, 2009.

It is my recollection that Ben was initially appointed a director of the Company for family purposes.

At no stage in the period of time that Ben was a director was he employed by the company nor did he draw a wage or director's fee or any other form of remuneration or reward. Ben was paid no dividends or any other form of income.

To the best of my knowledge and recollection, Ben did not undertake any form of lobbying at a state or national level. Ben undertook no active involvement in the Company.

After Ros' election in 2009, there was some discussion about Ben continuing the Company after Ros was appointed to Parliament. However, this did not proceed and the Company was instead sold to Geoffrey Greene on 3 August, 2009 at which time both Ben and Ros resigned as Directors.

It is my recollection of meeting with Michael Caltabiano ("Michae/'1 and Ros at which time Michael's potential involvement in the Company was discussed. My time sheets

•' disclose that meeting occurred on 16 October 2006. Michael had no involvement with the Company prior to this meeting. Ben was not present at this meeting nor any other meeting In my capacity as accountant and business advisor to the Company.

32. In his submission to the committee, Mr Caltabiano submitted that 'it cannot be established that there was any "professional relationship between [himself] and Mr Gommers' and 'that there was at most a limited personal relationship between them'. Mr Caltabiano provided a number of signed statements in support of his submission, including one signed by himself and two signed by Mr Gammers. Also included is a statutory declaration of Ms Rosslyn Bates and the letter from Mr Coogan referred to above. 33. In summary, these statements establish: • Mr Caltabiano and Ms Bates were known to each other politically and after their respective defeats in the 2006 State election, there were discussions between them to relaunch Ms Bates' company, Entree Vous;

Page 5 • Discussions about the structure and relaunching of this company occurred at a meeting with lawyers and the Accountant, Mr Coogan, on 16 October 2006; • As part of the relaunch, business cards were printed, including ones for Mr Caltabiano; • Ms Bates asked Mr Caltabiano to sign a document for inclusion on the lobbyist register for Entree Vous. Ms Bates explains this was done in order to comply with the published guidelines associated with the implementation of the lobbyist register and code of conduct in 2008 and to cover the circumstance whereby Mr Caltabiano remained on the register in case of an early State election being called. Mr Caltabiano assumes this was done just in case something ad hoc came up (which never eventuated); '· • Mr Gammers does not specifically recall signing documents for inclusion on the lobbyist register but may have done so at the request of his mother, Ms Bates; • Mr Caltabiano met Mr Gammers personally at a lunch with his wife at Ms Bates' residence in 2009 to celebrate Ms Bates' win in the 2009 State election; • Mr Caltabiano and Ms Bates do not recollect any conversations between them where Mr Gammers involvement with Entree Vous was discussed; • Mr Caltabiano states that he has no recollection of having previously seen Mr Gammers name on any document and the fact that Mr Gammers was a director only became known to him from media reports subsequent to the Estimates Committee hearing; • Mr Gammers recollection is that the only Entree Vous related activity that he can recall was travelling to Canberra in 2009 with his mother who was meeting people on behalf of Entree Vous clients; • Ms Bates and Mr Coogan state that Mr Gammers had no active role in the company; and • Mr Gammers verbally accepted a position of Senior DLO with the Department of Transport and Main Roads on 19 April 2012. The issue

34. The issue for the committee to consider under this element is whether Mr Caltabiano was incorrect in stating that he had no previous professional working knowledge or experience of Mr Ben Gammers prior to Mr Gammers appointment as Senior DLO in April2012. 35. Based on the material before the committee, the committee accepts Mr Caltabiano's position that his relationship with Mr Gammers at the time of his appointment as Senior DLO was based on personal, rather than professional working knowledge or experience. 36. There is no evidence before the committee to disprove Mr Caltabiano's statement at the ·• Estimates Committee hearing that his relationship with Mr Gammers at the relevant time was anything more than personal. 37. On the face of the material before the committee, the committee considers Mr Caltabiano's statements appear to be factually correct and the first element is not satisfied. 38. For completeness, the second and third elements are also addressed below.

Were any of the person's statements misleading?

39. In her letter to the Speaker, the Leader of the Opposition asserts that: The Director-General's Statements are clearly misleading in nature, and are more concerning because they are a calculated not inadvertent misleading. The Director­ General has made statements which are untrue, and they must, from the context of the documents I have provided, have known those statements to be untrue.

Page6 40. As noted above, previous Ethics Committees have considered it 'possible, although rare and unlikely, that a technically factually correct statement could also be misleading'-for example, by the deliberate omission of relevant information.8 41. Under this element, the committee considered whether a reasonable person who was listening to Mr Caltabiano's response, 'I had no previous professional working knowledge or experience of them in the past', could have been misled about Mr Caltabiano's relationship with Mr Gammers. 42. The committee found that there is insufficient evidence before it to suggest that Mr Caltabiano's statements were misleading. ... (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?

43. As noted above, previous Ethics Committees, and David McGee (McGee),9 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. 44. As with the second element, there is insufficient evidence before the committee to suggest that Mr Caltabiano intended to mislead the House. Conclusion

45. The committee finds that there is no evidence that Mr Caltabiano, then Chief Executive Officer of the Department of Transport and Main Roads deliberately misled the Transport, Housing and Local Government Committee on 18 October 2012. 46. The committee recommends that the House take no further action in regard to the matter of the alleged contempt.

Conclusion 1 On the information before the committee, the committee finds there is insufficient evidence to suggest that Mr Caltabiano's statement to the Transport, Housing and Local Government Committee acting as an Estimates Committee on 18 October 2012 that he had 'no previous professional working knowledge or experience of ... ' Departmental Liaison Officers was factually incorrect and misleading or that he intended to mislead the committee.

Recommendation 1 The committee recommends that the House take no further action in relation to the matter.

Mr Michael Crandon MP Chair November 2013

8 MEPPC, Alleged Misleading of the House by a Minister on 14 November 1996, Report No 4, Goprint, Brisbane, 1997, at 10. 9 Note 1.

Page7 Membership - 54th Parliament

Mr Michael Crandon MP, Chair Member for Coomera

Mrs Jo-Ann Miller MP, Deputy Chair Member for Bundamba

Mr Jan Kaye MP Member for Greens/opes

Mr Michael Pucci MP Member for Logan

Ms Jackie Trad MP Member for South Brisbane

Mr Peter Wellington MP Member for Nicklin

Secretariat

Mr Michael Ries, Research Director Mrs Sharon Hunter, Principal Research Officer Ms Andrea Musch, Executive Secretary

Contact

Telephone: 07 3406 7586 Facsimile: 07 3406 7691 E-mail: [email protected] Internet: http://www.parliament.gfd .gov .au/work-of-committees/committees/ethics

Page a