Michael McGuire: To drop the ICAC investigation into alleged rorting would be to cause enormous fury
If parliament decides the diary entries of the three are covered by parliamentary privilege, SA’s new corruption watchdog will be left with a large decision, writes Michael McGuire.
Opinion
Don't miss out on the headlines from Opinion. Followed categories will be added to My News.
- Michael McGuire: Footy must face its racist past and present
- Three SA MPs break silence on ICAC investigation
- How to get the most from your Advertiser digital subscription
And it’s a warm welcome to the new Independent Commissioner Against Corruption Ann Vanstone in her first week in the new job. If Vanstone was looking for a quiet few weeks to get her feet under the table and find the rhythm and swing of the job, the timing hasn’t been ideal.
Indeed, Vanstone’s whole tenure in the job could be shaped by how this stoush surrounding the application of parliamentary privilege plays out.
A statement released yesterday by three of the MPs – Terry Stephens, Adrian Pederick and Fraser Ellis – at the centre of the Commission’s criminal investigation into the alleged rorting of the country members’ allowance, announced they would be asking parliament to rule on whether privilege applies in their cases.
The three MPs, who also denied any allegations of criminality in claiming the allowance, want parliament to rule next week about whether they have to deliver documents to ICAC investigators.
Those sought by the commission include “diary entries and records of appointments’’.
Parliamentary privilege is an enormously powerful tool. It grants MPs some immunities from the ordinary law. The best known is that it allows MPs to speak freely in parliament without the threat of defamation, but it also protects how they go about their business as politicians.
MPs have sometimes abused the power. Former speaker Peter Lewis tried to have speeding fines overturned by claiming privilege. He was driving to parliament, you see.
In this case, the three claim they are not trying to “hide behind parliamentary privilege’’ to cover up any wrongdoing. However, other MPs including Nick McBride, Troy Bell, Tim Whetstone, Peter Treloar. John Dawkins and Geoff Brock, have already agreed to the ICAC requests.
It’s all a bit of a confusing mess. There are too many grey areas.
While it is appropriate that parliamentary privilege would apply if a politician was meeting with, for example, a whistleblower or with a constituent on a delicate matter, it’s hard to see how it can be justified to cover every single event on every single day.
If parliament decides the diary entries of the three are covered by privilege, that’s when Vanstone will be left facing a rather large decision. One option could be to just to drop the whole matter.
Former commissioner Bruce Lander said his investigation had been delayed by the MPs’ insistence that privilege could apply in their cases. Lander also said that, after his departure, it would be up to his successor “to decide whether the investigation should continue and if so the course of the investigation’’.
However, to drop it would be to cause enormous fury.
Not just from the public, who would see it as another example of one rule for politicians and another for everybody else, but from Labor as well.
There are some within Labor still unhappy, unfairly so, with Vanstone’s work as chair of the Electoral Boundaries Commission before the last election, which swung the pendulum back in favour of the Liberals.
If Vanstone drops the investigation because the MPs refuse to comply, they will be quick to cry bias.
If parliament does hold in favour of privilege, the Commissioner could still charge the three MPs with failure to produce documents under the ICAC Act. Failure to produce documents charges carry the threat of four years jail. What would happen next is far from clear cut, as courts have traditionally been reluctant to become involved in matters of privilege.
And there could be other options. Back in 1999 there was a Western Australian senator called Winston Crane. The AFP sought warrants to search his electorate office, parliamentary office and home for documents relating to charter flights.
He claimed privilege.
A Federal Court judge said he could not rule and asked the Senate to do so.
The Senate appointed a senior lawyer to go through the documents and determine which documents were privileged and which were not. In the end he was cleared.
Vanstone is in for a hectic few months.