Royal Commissions, Parliamentary Privilege and Cabinet Secrecy

Abstract

On 5 November 1992 Labor MLC, Mr John Halden, tabled a petition in the West Australian Parliament on behalf of Mr Brian Mahon Easton which implicated the then Opposition Leader and now Premier, Mr Richard Court, in the leakage of confidential information to Mr. Easton's estranged wife, Ms Penny Easton. The petition was later found by a Parliamentary Select Committee to be false and misleading in material respects. The fallout from the "Easton Affair" as it has become known includes the suicide of Ms Easton, the imprisonment of Mr Easton for contempt of Parliament and the establishment of a Royal Commission by Mr Court into the circumstances surrounding tabling of the petition. The validity of the Royal Commission's terms of reference have been challenged by the Federal Minister for Health, Dr. Carmen Lawrence, who was the Western Australian Premier at the time the Easton petition was tabled and the focus of the inquiry, on the ground that any public inquiry into the extent of her prior knowledge of the contents of the petition — a matter central to its investigation — inevitably involves breaches of parliamentary privilege and cabinet confidentiality. Politicians under inquiry instinctively invoke the dual concepts of parliamentary privilege and cabinet confidentiality to prevent potentially embarrassing and politically damaging disclosures concerning their integrity. In this regard, the Commissioners investigating the commercial activities of the Western Australian Government (the "WA Inc. Royal Commission") suggested that recent judicial interpretations may have extended the bounds of parliamentary privilege beyond the original intention and made the particularly pertinent observation that: "Whilst members of parliament may be free to speak their minds in parliament and should not be liable for comments made in such proceedings which would be action- able if made outside parliament because of their defamatory nature or otherwise, what \ they have said should not be treated for purposes associated with court and like pro-ceedings as if it were never said. To provide such an immunity or privilege to such persons is indeed likely to encourage or at least facilitate a disregard for the truth by those to whom the protection is given. If it is understood by members they are called to account for their parliamentary statements at a later time they are more likely than not to speak honestly although no less freely". As the discussion in this article shows, the extent to which politicians are j protected from the forced disclosure of cabinet proceedings or the public investigation of the truth or otherwise of their parliamentary statements is not yet finally settled.