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Memo Mark McGowan: the Corruption and Crime Commission chief’s position is untenable

29 July 2021

5:12 PM

29 July 2021

5:12 PM

In theory, the rule of law guarantees that every person is treated equally before the law. That important doctrine is being stress-tested now that Western Australia has an executive with total control of parliament.    

Some would argue that voters will, at the next election, be the ultimate protectors against any overreach by the executive. This of course assumes that the government does not in the interim misuse parliament and simply change the electoral laws. At times like this, our courts become even more crucial to our state’s system of democracy. 

The Supreme Court recently delivered a judgment which effectively gave the McGowan Government an F-grade in adhering to the rule of law. 

The background to this expensive debacle was a decision in 2019 by the then president of the Legislative Council, with the backing of every non-government political party, to commence proceedings against the state’s Corruption and Crime Commission. This was to challenge what has now proven to be a reckless process created by the government regarding the production of documents when investigating some former members of parliament.  

Every member of parliament from every political party that I have spoken to has consistently supported the CCC investigating any alleged serious misconduct against those former members. That is the whole point about the rule of law. It applies to all of us. However, while every other political party has insisted that those investigations occur in accordance with the laws of our state, the Labor government have insisted on a different standard. This has now resulted in our state’s law being broken more than 1000 times by this government at the cost of hundreds of thousands of dollars to taxpayers. 

Supreme Court Justice Hall noted that parliamentary privilege ‘is an essential foundation principle in our system of democratic government. It ensures that matters of public interest can be raised and fully debated without the risk of members being called to account for what they say in any court or place outside of parliament.’  

Whether privilege applies to documents is a question to be determined either by parliament or the courts. It is not the role of an investigative body, like the CCC, to decide. These are basic legal concepts and yet here we have another situation of overreach by the government this time resulting in documents unlawfully being provided based on an incompetent procedure reportedly co-designed by Attorney General Quigley and CCC Commissioner McKechnie. 

Disturbingly, this is not the first time that Mr McKechnie has been found wanting when handling matters of parliamentary privilege. He has previously been cautioned by parliament’s expert committee on procedure and privileges. This is now his second strike in this area alone. 

His overtly political reappointment in June this year was already highly controversial following news that he had been rejected on three separate occasions by Parliament’s expert corruption oversight committee.  Now that he is at the centre of the breach of WA law on more than 1,000 occasions, his position is untenable.  

Western Australians would be right to question whether his reappointment was bulldozed through parliament merely to ensure Mr McKechnie was reinstated before this highly embarrassing decision was handed down.  

Indeed the primary justification the government provided parliament for Mr McKechnie’s reappointment was that he had been recommended by a panel chaired by the Chief Justice. When I asked for the recommendation to be tabled in parliament, the government refused. So much for the much-promised but never delivered “gold standard” of transparency by this Government. The only thing more uncomfortable for the government is that the panel’s recommendation was made before the trial in this case sensationally exposed Mr McKechnie texting the Attorney General about operational matters during his time away in Bali.  

All of this disturbing backdrop is before we even start considering that in Mr McKechnie’s five year tenure there were at least five major failings exposed by parliament’s expert oversight committee. One such incident involved a man who was wrongfully and forcibly fingerprinted, wrongfully prosecuted, convicted, fined and ordered to pay costs. He complained to the CCC, however, Mr McKechnie is recorded as saying ‘the matter was beyond the remit of the Commission’s functions’. Thankfully his overseer the Parliamentary Inspector had a different view and did the work the CCC should have done. 

Western Australians should be concerned that the McGowan Government insisted on ramming through the appointment of the same corruption watchdog who is meant to keep it in line.  Only enthusiasts of dark humour would be amused about these current events given it was the aftermath of WA Inc that first saw the creation of an anti-corruption agency in our State.  

The Supreme Court’s judgment vindicates all non-government parties who have consistently demanded that WA’s law be upheld. Those parties, including the Liberal and National parties, deserve an apology from the Premier. 

If the Premier cannot stomach apologising to his political opponents then he should at least have the decency to apologise to his Labor colleague Kate Doust. He effectively wrongfully dismissed her from her role as president of the Legislative Council. The Premier should offer to reinstate her. 

Indeed a Premier who respects the rule of law would now support an immediate inquiry into the role of the Attorney General in co-designing the process that lead to this staggering number of breaches of law. The Premier may enjoy basking in the A-grade voters gave him for corona management but that does not entitle him to duck, dive or deflect from his current F-grade on the rule of law. 

Hon Nick Goiran MLC is the Western Australian shadow Attorney General.

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